Gearhart v. Eidson Metal Products

OPINION

HENDLEY, Judge.

Plaintiff appeals a workman’s compensation award. He contends that the trial court erred in (1) finding that he had a 5 percent scheduled injury impairment but was not disabled, (2) finding that plaintiff would not require future medicals, (3) refusing to assess certain costs against defendant, and (4) awarding attorney fees in the amount of $200.

Scheduled Injury.

The trial court found that plaintiff had suffered an injury to the elbow resulting in a 5 percent impairment of the elbow (§ 52-1 — 43(B), N.M.S.A.1978), but that he was not totally or partially disabled, pursuant to § 52-1-41 or 42, N.M.S.A.1978.

Viewing the evidence and its logical inferences in the light most favorable to support the verdict (Adams v. Loffland Brothers Drilling Co., 82 N.M. 72, 475 P.2d 466 (Ct.App.1970)), we find that a medical expert testified that plaintiff’s pain was subjective and the pain did not hinder him from working regularly and, accordingly, plaintiff was not disabled and the condition was not chronic. Plaintiff’s expert found plaintiff to have a 5 percent permanent impairment of his right upper extremity. The finding of the trial court was within the range of the testimony of the medical experts. It was for the trial court to resolve the conflict. Martinez v. Universal Constructors, Inc., 83 N.M. 283, 491 P.2d 171 (Ct.App.1971).

Future Medical Expense.

Section 59-10-19.1, N.M.S.A.1953 (2nd Repl. Vol. 9, pt. 1), subsequently amended, see 52-1-49, N.M.S.A.1978, states as follows:

“Medical and related benefits — Artificial members. — A. After injury, and continuing as long as medical or surgical attention is reasonably necessary, the employer shall furnish all reasonable surgical, physical rehabilitation services, medical, osteopathic, chiropractic, dental, optometry and hospital services and medicine, not to exceed the sum of forty thousand dollars ($40,000), unless the workman refuses to allow them to be so furnished.”
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The trial court found that the plaintiff would not require any medical attention in the future for the injury sustained. Notwithstanding any language which may be construed to the contrary in Gallegos v. Duke City Lumber Co., Inc., 87 N.M. 404, 534 P.2d 1116 (Ct.App.1975), we are of the view that the continuing medical and surgical attention for the injury cannot be terminated by the trial court. The right created by statute is for a period “continuing as long as medical and surgical attention is reasonably necessary.” The trial court cannot restrict or terminate that substantive right.

Neither does Hales v. Van Cleave, 78 N.M. 181, 429 P.2d 379 (Ct.App.1967) preclude an award of medical or surgical attention which may arise in the future. Hales only prohibits the trial court from making a specific award of money for future medical or surgical attention.

Costs.

Plaintiff filed a cost bill for one medical expert and two lay witnesses in the trial court. He also requested costs in his Requested Findings of Fact and Conclusions of Law filed on March 27, 1978. Defendants’ Requested Findings of Fact and Conclusions of Law filed on March 31, 1978, stated in part as follows:

“29. The plaintiff’s attorney failed to supply medical reports to the defendants’ attorney, although those reports were requested on January 24, 1978 during the plaintiff’s deposition (Page 38) and on February 4, 1978 (copy of letter attached).
“30. This failure to supply medical records made it necessary for the defendants to file a motion to produce such records [filed February 27,1978], and also made it necessary to depose Dr. Allan Wilson.
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“32. The failure by the plaintiff’s at-' torney to supply medical reports to the defendants precluded the defendants from making an offer, in writing, more than 30 days prior to trial.” (Tr. 32)

The trial court made its Findings of Fact and Conclusions of Law on April 18, 1978, which were identical to those quoted above. The trial court’s judgment was filed on April 18, 1978. Costs were not awarded.

There was no hearing on the issue of costs relative to the failure to furnish medical reports. Thus, Findings Nos. 29, 30 and 32 are not supported by the record. Plaintiff is awarded costs for the medical and lay witnesses. The trial court abused its discretion in not awarding such costs. Hales v. Van Cleave, supra.

Attorney Fees.

The trial court awarded plaintiff $200 in attorney fees. The awarding of attorney fees is within the sound discretion of the trial court and not reviewable absent an abuse. Escobedo v. Agriculture Products Co., Inc., 86 N.M. 466, 525 P.2d 393 (Ct.App.1974).

In Keyser v. Research Cottrell Co., 84 N.M. 173, 500 P.2d 997 (Ct.App.1972) this court held that § 52-l-54(D), N.M.S.A.1978, sets forth the elements which must be considered in awarding attorney fees and it is an abuse of discretion if the trial court fails to consider them. From the record we cannot determine what was considered by the trial court in awarding attorney fees.

In Ortega v. N.M. State Highway Dept., 77 N.M. 185, 420 P.2d 771 (1966) our Supreme Court considered other issues as also being important. These included the length of the transcript of the proceedings in the trial court, the amount of the award, and the results. In the present case, injury and liability were fully contested. Plaintiff’s attorney prepared and conducted a full trial on the merits, attended two depositions, prepared a motion to undertake discovery, and prepared proposed findings of fact and conclusions of law. Moreover, plaintiff was successful in receiving an award of compensation. From the above, it clearly appears that the trial court abused its discretion in awarding plaintiff attorney fees of only $200. To allow such a low award to stand would have a “chilling effect upon the ability of an injured party to obtain adequate representation.” Herndon v. Albuquerque Public Schools and Commercial Standard Insurance Company, 92 N.M. 287, 587 P.2d 434 (1978).

The decision of the trial court on the award of attorney fees is reversed. Since the original trial judge is no longer on the court and given the factors which we have outlined above, we feel that we are in as good a position to set attorney fees as a new trial judge. Accordingly, we award plaintiff attorney fees for the trial in the amount of $1,000.

The judgment is affirmed as to plaintiff’s award of compensation and is reversed as to costs, future medical attention and attorney fees. Plaintiff is awarded the sum of $1,500 attorney fees on appeal. Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975).

IT IS SO ORDERED.

WALTERS, J., concurs. SUTIN, J., concurs in result.