{ "id": 1592793, "name": "Gabriela BATEMAN, Individually and as Mother of Paul Bateman and Nadine Bateman, Minor Children, Claimant-Appellant/Cross-Appellee, v. SPRINGER BUILDING MATERIALS CORPORATION, a/k/a Mobile Premix Concrete, Inc., Respondent-Appellee/Cross-Appellant", "name_abbreviation": "Bateman v. Springer Building Materials Corp.", "decision_date": "1989-05-11", "docket_number": "No. 10493", "first_page": "655", "last_page": "658", "citations": [ { "type": "official", "cite": "108 N.M. 655" }, { "type": "parallel", "cite": "777 P.2d 383" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "90 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873551 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0124-01" ] }, { "cite": "70 L.Ed.2d 242", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "opinion_index": 0 }, { "cite": "102 S.Ct. 467", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1981, "opinion_index": 0 }, { "cite": "454 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6423744, 6423873, 6423333, 6423654, 6423571, 6423455 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/454/0934-05", "/us/454/0934-06", "/us/454/0934-01", "/us/454/0934-04", "/us/454/0934-03", "/us/454/0934-02" ] }, { "cite": "96 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577421 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0084-01" ] }, { "cite": "97 N.M. 795", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555130 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0795-01" ] }, { "cite": "100 N.M. 568", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588602 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0568-01" ] }, { "cite": "77 N.M. 576", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808258 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0576-01" ] }, { "cite": "732 P.2d 1352", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2621598 ], "pin_cites": [ { "page": "1354" } ], "opinion_index": 0, "case_paths": [ "/mont/225/0423-01" ] }, { "cite": "103 N.M. 631", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711399 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0631-01" ] }, { "cite": "65 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847744 ], "weight": 3, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0314-01" ] }, { "cite": "80 N.M. 54", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359047 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0054-01" ] }, { "cite": "53 N.M. 295", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580768 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0295-01" ] }, { "cite": "97 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555105 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0001-01" ] } ], "analysis": { "cardinality": 541, "char_count": 8837, "ocr_confidence": 0.772, "pagerank": { "raw": 8.384012449139166e-08, "percentile": 0.4820750167287745 }, "sha256": "1cfe98e965aa3759eface3e2b4acf8172c6f38d08bc1224a66616ca9c5550052", "simhash": "1:e10437a5a459a346", "word_count": 1389 }, "last_updated": "2023-07-14T16:06:26.206257+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "APODACA and CHAVEZ, JJ., concur." ], "parties": [ "Gabriela BATEMAN, Individually and as Mother of Paul Bateman and Nadine Bateman, Minor Children, Claimant-Appellant/Cross-Appellee, v. SPRINGER BUILDING MATERIALS CORPORATION, a/k/a Mobile Premix Concrete, Inc., Respondent-Appellee/Cross-Appellant." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\nClaimant\u2019s husband, Richard Bateman, was employed as a batch plant operator by Springer Building Materials Corporation (respondent). On December 16,1986, Bate-man died when he became entrapped in the snub pulley conveyor belt mechanism of batch plant number two. It is undisputed that Bateman\u2019s death arose out of and in the course of his employment with respondent.\nClaimant filed an action in the Workers\u2019 Compensation Division seeking an increase in benefits due to respondent\u2019s failure to provide a safety device. See NMSA 1978, \u00a7 52-1-10 (Orig.Pamp.). Respondent sought a decrease in benefits due to decedent\u2019s failure to follow certain safety procedures. See Id. Prior to entry of judgment, claimant also filed a motion requesting attorney\u2019s fees and costs.\nOn appeal, claimant challenges the hearing officer\u2019s order awarding her attorney\u2019s fees at her expense. Respondent cross-appeals the hearing officer\u2019s award of a ten percent increase in benefits to claimant. We affirm the hearing officer\u2019s decisions on both issues.\nATTORNEY\u2019S FEES\nClaimant argues the hearing officer erred in awarding attorney\u2019s fees under the provisions of NMSA 1978, Section 52-1-54 (Cum.Supp.1986) (the interim Act), and instead should have based the award on the provisions of NMSA 1978, Section 52-1-54 (Repl.Pamp.1987) (the new Act). Claimant does not dispute the June 19,1987 effective date of the new Act\u2019s provisons regarding attorney\u2019s fees. See 1986 N.M.Laws, ch. 22, \u00a7 105; 1987 N.M.Laws, ch. 235, \u00a7\u00a7 24 & 54(A); N.M. Const, art. IV, \u00a7 23. Rather, claimant contends the provisions of the new act should control since its effective date preceded the entry of judgment, and that no right to attorney\u2019s fees had vested until judgment issued awarding compensation to the worker.\nIn support of her contention, claimant correctly observes that an award of attorney\u2019s fees in a workers\u2019 compensation action must be predicated on a successful recovery of compensation or other medical or related benefits. Montoya v. Anaconda Mining Go., 97 N.M. 1, 635 P.2d 1323 (Ct.App.1981). Since attorney\u2019s fees are not available until recovery of compensation for the worker, claimant asserts that neither party has a vested right in a particular procedure or method for awarding attorney\u2019s fees prior to the actual award of compensation. See Rubalcava v. Garst, 53 N.M. 295, 206 P.2d 1154 (1949). Through this analysis, the provisions of the new act would control since judgment in this ease was not entered until January 25, 1989, well after the effective date of the new act. Claimant relies on this same analysis in arguing that application of the provisions of the new act would not offend N.M. Const, article IV, section 34 (the legislature may not affect the right or remedy of a litigant, or change the rules of procedure in any pending case), since the right to attorney\u2019s fees does not vest until compensation is awarded.\nWe are not persuaded by claimant\u2019s analysis. The proposition that the Workers\u2019 Compensation Act is sui generis is a fundamental and controlling characteristic of the Act. Anaya v. City of Santa Fe, 80 N.M. 54, 451 P.2d 303 (1969); Magee v. Albuquerque Gravel Products Co., 65 N.M. 314, 336 P.2d 1066 (1959). It creates exclusive rights and remedies which are not subject to or controlled by causes of action in law or equity or civil procedure, except as provided by the Act. Id. Specific to this question, the Act provides for the amount, method of payment, and burden of proof required for an award of attorney\u2019s fees to a claimant. See \u00a7 52-1-54.\nThe interim Act, in place at the time of decedent\u2019s accident, provided that \u201cthe benefits for death, shall be based on, and limited to, the benefits in effect on the date of the accidental injury resulting in the disability or death.\u201d NMSA 1978 \u00a7 52-1-48 (Orig.Pamp.). Cf. Amos v. Gilbert W. Corp., 103 N.M. 631, 711 P.2d 908 (Ct.App.1985) (award of compensation should have been based on rate in effect at time of injury and not on rate in effect at time of trial). Accordingly, the benefits available to claimant are the benefits of the interm Act which was in effect on December 16, 1986, when Bateman\u2019s accidental death occurred.\nClaimant argues that nowhere in the Workers\u2019 Compensation Act are attorney\u2019s fees referred to as \u201cbenefits\u201d. However, claimant offers no authority suggesting the word \u201cbenefits\u201d is exclusive of attorney\u2019s fees. Facing a similar question concerning attorney\u2019s fees in Cadwell v. Bechtel Power Corp., 732 P.2d 1352, 1354 (Mont.1987), the Supreme Court of Montana relied, in part, on the proposition that \u201cWorkers\u2019 Compensation benefits are determined by the statutes in effect as of the date of injury,\u201d in holding that the law in effect at the time of claimant\u2019s injury, rather than the law in effect at the time of the award of compensation benefits, applied to determination of claimant\u2019s attorney\u2019s fees. Like the court in Cadwell, we see no reason to distinguish an award of attorney\u2019s fees from any other benefit to which a claimant is entitled.\nA primary purpose of the Workers\u2019 Compensation Act is to avoid uncertainty in litigation. Mirabal v. International Minerals & (Ihem. Corp., 77 N.M. 576, 425 P.2d 740 (1967). Interpreting Section 52-1-48 to include determination of the controlling law regarding attorney\u2019s fees promotes certainty in litigation and respects the sui generis nature of our Workers\u2019 Compensation Act. See Id.;, see also Anaya v. City of Santa Fe; Magee v. Albuquerque Gravel Products Co. Our disposition of this issue precludes the necessity to reach the constitutional question.\nINCREASE IN BENEFITS\nOn cross-appeal, respondent challenges the hearing officer\u2019s award of a ten percent increase in benefits to claimant. Respondent argues a ten percent decrease in benefits was appropriate due to decedent\u2019s failure to use a safety device provided by respondent, or decedent\u2019s failure to observe standard lock out procedures. See \u00a7 52-1-10.\nAs to decedent\u2019s failure to use a safety device, we find respondent failed to properly preserve the issue for appellate review. Where a party has failed to request specific findings, a review of the evidence is not appropriate on appeal. Crownover v. National Farmers Union Property and Casualty Co., 100 N.M. 568, 673 P.2d 1301 (1983); Pedigo v. Valley Mobile Homes, Inc., 97 N.M. 795, 643 P.2d 1247 (Ct.App.1982). Among the thirty findings of fact requested by respondent, we find nothing specifically identified as a \u201csafety device\u201d. Absent such identification, we do not review the issue. See Crownover; Pedigo.\nAlternatively, respondent claims decedent\u2019s failure to observe standard lock out procedures requires a ten percent decrease in benefits. Respondent argues the lock out procedures are standard practice established by both Federal and New Mexico OSHA regulations, and as such are \u201cstatutory regulations\u201d under Section 52-1-10(A). We find this contention without merit. The use of OSHA regulations to modify an employee\u2019s workers\u2019 compensation benefits is clearly precluded under NMSA 1978, 50-9-21(A) (Repl.Pamp.1988). Cf., Casillas v. S.W.I.G., 96 N.M. 84, 628 P.2d 329 (Ct.App.1981), appeal dismissed, 454 U.S. 934, 102 S.Ct. 467, 70 L.Ed.2d 242 (1981).\nFinally, we urge respondent\u2019s counsel engage in a careful reading of SCRA 1986, 12-208(B)(5), which requires docketing statements include citation to contrary authorities known by appellant. The record below reveals respondent used Section 50-9-21(A) as the basis for an objection to claimant\u2019s attempt to introduce OSHA regulations in the proceedings before the hearing officer, yet respondent failed to direct this court's attention to the same section in its docketing statement. We also urge a general reading of SCRA 1986, 12-312, empowering this court to impose sanctions for failure to comply with the appellate court rules.\nCONCLUSION\nThe decisions of the hearing officer to award attorney\u2019s fees under the provisions of the interim Act and to increase claimant\u2019s benefits by ten percent due to respondent\u2019s failure to provide a safety device are affirmed. Claimant is awarded $1,000 in attorney\u2019s fees for defending the cross-appeal. See Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct.App.1977).\nIT IS SO ORDERED.\nAPODACA and CHAVEZ, JJ., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Ronald Boyd, Santa Fe, for claimant-appellant/cross-appellee.", "David N. Whitham, Butt, Thornton and Baehr, P.C., Albuquerque, for respondentappellee/cross-appellant." ], "corrections": "", "head_matter": "777 P.2d 383\nGabriela BATEMAN, Individually and as Mother of Paul Bateman and Nadine Bateman, Minor Children, Claimant-Appellant/Cross-Appellee, v. SPRINGER BUILDING MATERIALS CORPORATION, a/k/a Mobile Premix Concrete, Inc., Respondent-Appellee/Cross-Appellant.\nNo. 10493.\nCourt of Appeals of New Mexico.\nMay 11, 1989.\nCertiorari Denied July 26, 1989.\nRonald Boyd, Santa Fe, for claimant-appellant/cross-appellee.\nDavid N. Whitham, Butt, Thornton and Baehr, P.C., Albuquerque, for respondentappellee/cross-appellant." }, "file_name": "0655-01", "first_page_order": 693, "last_page_order": 696 }