(specially concurring)
I specially concur in the majority opinion. I desire to point out two matters.
A. UN CHALLEN GED FINDINGS
In affirming this workmen’s compensation case, we hold that unchallenged findings are the facts before us. This is established law. For purposes of reversing, the majority opinion in Ortiz v. Ortiz & Torres Dri-Wall Company, 83 N.M. 452, 493 P.2d 418 (Ct.App.1972), held that failure to specifically challenge findings of fact was only a technical error and could be avoided. I dissented. Ortiz, supra, should not be considered valid authority on this point since a writ of certiorari was not sought. This type of judicial writing cannot checkmate the rules of appellate procedure. If we condone error in one case and not in another, judicial stature falls.
B. SCHEDULED MEMBER INJURIES v. TOTAL AND PARTIAL DISABILITY
Section 59-10-18.4, N.M.S.A.1953 (Repl. Vol. 9, pt. 1) was a new section enacted in 1959. Subsection A reads in part as follows:
For disability resulting from an accidental injury to specific body members including the loss or loss of use thereof, the workman shall receive * * * compensation * * * for the following periods: * * * [Emphasis added.]
(a) The word “disability” is not followed by the phrase “as defined in this Act.” It is not so limited. Therefore, it does not include in its meaning “total disability” as defined in § 59-10-12.18, N.M. S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1971), or “partial disability” as defined in § 59-10-12.19, N.M.S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1971). The word “disability” simply means “disablement” resulting from an accidental injury.
(b) The “accidental injury to specific body members including the loss or loss of use thereof,” simply means that the words “accidental injury” covers “loss or loss of use thereof.” If the workman suffers “loss or loss of use” of a specific body member, he is entitled to scheduled compensation for the number of weeks granted by the section, supra.
“Loss” of a scheduled member means severance or amputation. Gonzales v. Pecos Valley Packing Co., 48 N.M. 185, 146 P.2d 1017 (1944). “Loss of use,” although not defined, means that where the total loss of use of a scheduled member causes total disability, it is compensable as such. Mathews v. New Mexico Light and Power Co., 46 N.M. 118, 122 P.2d 410 (1942). When unqualified, “loss of use” has substantially the same meaning as “total loss of use.” Travelers Insurance Co. v. Seabolt, 351 S.W.2d 350 (Tex.Civ.App.1961). “Loss of use” under subsection A, supra, means “total loss of use,” because under subsection B, “partial loss of use” is expressed as a degree of “total loss or loss of use.”
(c)It is meaningless to analyze the cases from Mathews, supra, to Montoya v. Sanchez, 79 N.M. 564, 446 P.2d 212 (1968), to seek a rule for the above subject matter. It is meaningless to play with the wording of § 59-10-18.4, supra. Our duty is to seek a simple solution. It is this:
(1) If substantial evidence shows that the claimant was disabled by reason of an accidental injury which resulted in loss or total loss of use of a specific body member or members, and the trial court so finds, then the claimant is entitled to scheduled compensation for the number of weeks granted.
(2) If substantial evidence shows that the claimant was disabled by reason of an accidental injury which resulted in loss or total loss of use of a specific body member or members by reason of which claimant is wholly unable to perform the usual tasks in the work he is performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience, [§ 59-10-12.18, supra], and the trial court so finds, then the claimant is entitled to “total disability” compensation as set forth in § 59-10-18.2, N.M. S.A.1953 (Repl.Vol. 9, pt. 1, Supp.1971). If Artur Rubinstein, the noted concert pianist, suffers the loss or total loss of use of a finger, he is totally disabled.
By finding No. 4, the trial court found that Witcher was totally disabled. This closed the door against the conclusion that Witcher was entitled to scheduled injury compensation.
(d) We are not concerned in this case with scheduled injuries v. “partial disability” as defined in § 59-10-12.19, supra. But, just as night follows day, the rule applicable to “total disability” would apply to “partial disability.”
, If the above rules are followed, courts of review will not be confronted with wordy conflicting decisions of the last 30 years.
The word “impairment” should be dropped. It was never used in the Workmen’s Compensation Act. “Substantial impairment to his whole body” began with Mathews, supra, 1942. This phrase has never been defined. We do not know what “bodily impairment” means because the phrase has been casually changed since 1942 to create a rule to reach a conclusion. “Disability,” as defined in the Act, should be the core of the rule and the conclusion.
The word “exclusive,” used in the phrase, “that the scheduled injury section is exclusive,” in recent decisions, should be dropped. It is also a portion of a rule stated in the majority opinion. The scheduled injury section is not exclusive.
Compensation should be awarded in accordance with the classification of, (1) “disablement,” or (2) “disability” as defined by statute, and not on the basis of a judicial rule which separates “disablement” from “disability.”