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Rodriguez v. McAnally Enterprises2/7/1994
man's Fund points to Dr. Diven's testimony in which he states that the reason Worker was taken from work was because of the wrist injury caused by the second accident.
However, as Legion points out, Dr. Diven testified that before the second accident Worker's left arm maladies included complaints of numbness and tingling, and Worker had plans for surgery to relieve the carpal tunnel symptoms. In addition, there was evidence that the surgery performed on Worker's left wrist was to correct degenerative problems aggravated by the first accident which pre-existed the second accident. As a consequence, evidence that Worker's surgery was planned before the second accident and that Worker's arm problems pre-existed the second accident is substantial evidence to support liability for Fireman's Fund.
Second, Fireman's Fund argues that, regardless of who is liable for disability compensation, it should be no more than that allowed for a scheduled injury to the left elbow. See NMSA 1978, ยง 52-1-43(A) (Repl. Pamp. 1987). The shortcoming in this argument is the assumption that the injury to Worker's elbow arising from the first accident was, as a matter of law, the only injury involved. Reading the WCJ's findings in a way that supports its judgment, we hold that the WCJ found that the sum total of all of Worker's injuries made him partially unable to work after his surgery related to the first accident. See ) (findings of the trial court will be construed so as to uphold the judgment rather than to reverse it, unless clearly erroneous or deficient). We reach this result because the WCJ's findings expressly determined whether a particular injury was nondisabling, such as those findings related to the Worker's 1990 face injury. In contrast, the findings regarding Worker's 1989 back, rib, and elbow injuries were not labeled as nondisabling. Therefore, we consider those injuries not expressly identified as nondisabling to be classified as disabling injuries.
Additionally we find substantial evidence to support this result. Dr. Diven gave Worker several different impairments for the back injury , the wrist injury, and the elbow injury. Dr. Watson also indicated that Worker suffered from multiple limitations for use of the left arm for lifting, gripping, pushing, pulling, or carrying, and could not pursue heavy lifting because of the limitation to his lower back. Dr. Watson also stated that Worker was seriously disabled by multiple injury conditions. Therefore, we hold there was substantial evidence to support the compensation order to the extent it relied on the fact that Worker's disability was not limited to a scheduled member or function.
We affirm the compensation order in its entirety and grant Worker's request for fees on appeal in the amount of $1,000.
IT IS SO ORDERED.
BENJAMIN ANTHONY CHAVEZ, Judge
WE CONCUR:
LYNN PICKARD, Judge
BENNY E. FLORES, Judge
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