{ "id": 2855559, "name": "James E. SNEAD, Plaintiff-Appellant, v. ADAMS CONSTRUCTION COMPANY, Inc., Employer, and Fireman's Fund Indemnity Company, Insurer, Defendants-Appellees", "name_abbreviation": "Snead v. Adams Construction Co.", "decision_date": "1963-04-15", "docket_number": "No. 7163", "first_page": "94", "last_page": "98", "citations": [ { "type": "official", "cite": "72 N.M. 94" }, { "type": "parallel", "cite": "380 P.2d 836" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "70 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852834 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/70/0187-01" ] }, { "cite": "69 N.M. 248", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791841 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0248-01" ] }, { "cite": "269 S.W.2d 163", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10186499 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/sw2d/269/0163-01" ] }, { "cite": "191 Okl. 414", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 1624630 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/okla/191/0414-01" ] }, { "cite": "2 F.Supp. 766", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4124828 ], "opinion_index": 0, "case_paths": [ "/f-supp/2/0766-01" ] }, { "cite": "61 F.2d 673", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 911453 ], "opinion_index": 0, "case_paths": [ "/f2d/61/0673-01" ] }, { "cite": "294 U.S. 435", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3922893 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/294/0435-01" ] }, { "cite": "71 F.2d 361", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 264010 ], "opinion_index": 0, "case_paths": [ "/f2d/71/0361-01" ] }, { "cite": "61 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318664 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/61/0412-01" ] }, { "cite": "46 P.2d 942", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "173 Okl. 114", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8886833 ], "opinion_index": 0, "case_paths": [ "/okla/173/0114-01" ] }, { "cite": "71 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346436 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/71/0175-01" ] }, { "cite": "68 N.M. 18", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718343 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/68/0018-01" ] }, { "cite": "38 U.S.C. \u00a7 355", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "38 U.S.C. \u00a7 332", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "280 S.W. 37", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "312 Mo. 581", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1802500 ], "opinion_index": 0, "case_paths": [ "/mo/312/0581-01" ] }, { "cite": "166 Kan. 119", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1237740 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/kan/166/0119-01" ] }, { "cite": "38 U.S.C. \u00a7 101", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(13)" }, { "page": "(15)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 576, "char_count": 9623, "ocr_confidence": 0.709, "pagerank": { "raw": 1.2446214250493593e-07, "percentile": 0.6087341385540238 }, "sha256": "839a93a29ba347b97b10fa5ec136b38aa2230056ff9368846fee1bdad0101118", "simhash": "1:250c0b05b55c5f85", "word_count": 1536 }, "last_updated": "2023-07-14T21:27:49.886466+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and MOISE, J., concur." ], "parties": [ "James E. SNEAD, Plaintiff-Appellant, v. ADAMS CONSTRUCTION COMPANY, Inc., Employer, and Fireman\u2019s Fund Indemnity Company, Insurer, Defendants-Appellees." ], "opinions": [ { "text": "CARMODY, Justice.\nThe question presented in this case is whether a workmen\u2019s compensation award should be reduced by the percentage of service-connected disability adjudged to a veteran by the Veterans Administration.\nThe trial court found that the claimant (appellant here) was totally disabled following an accidental injury. It is apparent from the trial court\u2019s findings and judgment that if the claimant had been receiving no other income, he would have been entitled to an award for total permanent disability as provided by statute. However, evidence was received and considered by the court that, prior to the accident, the claimant had been awarded 60% disability by the Veterans Administration for service-connected disability, 50% of which was for an \u201canxiety state\u201d and 10% for a duodenal ulcer. The court, therefore, on the theory that no person could be disabled more than 100%, awarded claimant 40% disability, with the provision that this award should be reduced or increased in accordance with any changes in the Veterans Administration payment. Thus, the award is unmistakably conditioned upon the determination of the Veterans Administration.\nClaimant urges that the veterans payment is, in effect, a pension, and as such cannot be considered in any sense to offset a disability allowed under the New Mexico Workmen\u2019s Compensation Law. Contrariwise, the appellees argue that inasmuch as the federal statute, 38 U.S.C. \u00a7 101(13), calls the award \u201ccompensation\u201d for service-connected disability, whereas the award for age, length of service, or non-service-connected disability is termed a \u201cpension,\u201d 38 U.S.C. \u00a7 101(15), that therefore both the New Mexico Workmen\u2019s Compensation Act and service-connected disability under the federal statute apply to earning capacity and should be considered together to prevent double recovery. Apparently the cases are pretty much in accord that if the Veterans Administration payment is a pension, it cannot be considered to reduce the amount of workmen\u2019s compensation. See, Dolezal v. Rizek, 1948, 166 Kan. 119, 199 P.2d 179, and cases collected in Skinner v. Davis, 1925, 312 Mo. 581, 280 S.W. 37. In our view, appellee\u2019s position is untenable, if for no other reason than that to permit reduction because the workman is receiving government \u201ccompensation\u201d would be to penalize one who has suffered a disability directly related to the service he has rendered to his country, whereas an award to another whose disability has not so resulted would be completely unaffected. Logic, justice and appreciation all will prevent such a warped distinction.\nAppellee further argues that since the claimant\u2019s Veterans Administration compensation is an award for \u201cimpairment of earning capacity in civil occupations,\u201d 38 U.S.C. \u25a0\u00a7 355, an award of 100% disability under the Workmen\u2019s Compensation Act in effect at the time of the injury (\u00a7\u00a7 59-10-1 to 59-10-31, N.M.S.A., 1953 Comp., prior to amendment by Laws of 1959, ch. 67) would result in a \u201ctotal\u201d disability of 160%. Obviously, as evidenced by the findings and judgment, the trial court was of the same view. The effect of the decision, however, is to conclude that a 40% award will compensate a workman who was found to be 100% disabled, in the face of findings and conclusions that clearly negate any connection between the pre-existing conditions and the present disability. We cannot agree with such a determination.\nAt the outset, we must recognize that the test of disability under the Veterans Administration compensation statute rests upon the presumption that the individual was in \u201csound condition\u201d when he entered the service (38 U.S.C. \u00a7 332), and that awards are granted according to the \u201caverage impairments of earning capacity\u201d of the veteran when he returns to earning a living in a civilian society (38 U.S.C. \u00a7 355). That is very different from the test under our Workmen\u2019s Compensation statute, which relates to the workman\u2019s ability \u201cto obtain and retain gainful employment,\u201d considering his age, education, training, general mental and physical capacity, and his adaptability. Rhodes v. Cottle Construction Co, 1960, 68 N.M. 18, 357 P.2d 672; accord Lozano v. Archer, 1962, 71 N.M. 175, 376 P.2d 963. There is no presumption in our law that every workman is completely able-bodied when he enters his employment; the measure of disability under our statute is the relationship between the workman\u2019s ability to do work prior to the injury, and such ability following the injury. 173 Okl. 114, 46 P.2d 942,where workmen\u2019s compensation was the question, the compensation carrier admitted that the workman was 100% disabled, but it argued that because there was evidence that the employee received a 75% disability award from the Veterans\u2019 Bureau, any workman\u2019s compensation award above 25% was error. The court rejected the argument, saying:\nIn the instant case, the trial court specifically found that claimant was permanently disabled following the February 27, 1959 accident, and it is admitted that whatever may have been his pre-existing condition, it did not prevent him from working as a truck-driver in his employment. Thus, the evidence of the Veterans Administration compensation for service-connected disability was not only irrelevant and immaterial; it was incompetent in determining the degree of disability suffered by claimant as a result of the injury complained of. Waldroop v. Driver-Miller Plumbing & Heating Corp., 1956, 61 N.M. 412, 301 P.2d 521.\nBoth parties to this appeal admit the paucity of decision on the exact point at issue here. There are, however, cases involving similar situations wherein compensation awards from the United States have been held to be of no consequence in determining eligibility for benefits under other unrelated provisions of law. In Protho v. Nette, 1935,\n\u201c * * * The [Veterans\u2019Bureau] rating was made for a different purpose and under different standards than those involved in the present case. * * * It certainly bears no relationship to, nor can it be considered of any probative value against, the undisputed fact of respondent having satisfactorily performed the work in which he was engaged when injured, for a period of approximately five years preceding the injury.\u201d\nTo like effect are Miller v. United States, 71 F.2d 361 (5th Cir.1934), aff\u2019d 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977; Chrisman v. United States, 61 F.2d 673 (9th Cir.1932); Lomicka v. United States, 2 F.Supp. 766 (E.D.N.Y.1932); Tidewater Associated Oil Co. v. Ale, 1942, 191 Okl. 414, 130 P.2d 991; Gordon v. Chevrolet-Shell Div. of General Motor Corp., 269 S.W.2d 163 (Mo.App. 1954). We have no doubt that disability compensation voluntarily bestowed by the government upon veterans who have suffered injuries as a result of military service, does not fix a compensation carrier\u2019s legal liability upon its workmen\u2019s compensation insurance contracts.\nAppellee relies on cases from other jurisdictions which concerned \u201csecond injury funds.\u201d They are not applicable to the facts of this case, inasmuch as we do not have such a statute. The situation in this regard and concerning apportionment between losses is discussed in Reynolds v. Ruidoso Racing Association, Inc., 1961, 69 N.M. 248, 365 P.2d 671.\nWe would also note our recent decision in Winter v. Roberson Construction Co., 1962, 70 N.M. 187, 372 P.2d 381, where we held that receipt of unemployment compensation benefits was no bar to a claim for workmen\u2019s compensation for disability during the same period. There is not now, nor was there at the time of claimant\u2019s injury, any provision in our compensation statute forbidding benefits to an injured workman on the ground that he is receiving benefits under some other local or federal statute.\nWe hold, therefore, that the evidence of claimant\u2019s receipt of Veterans Administration disability compensation was incompetent, and presented an issue not germane to the real question involved in this case. The judgment of the lower court must be set aside, and the finding of total disability being supported by substantial evidence, an award of 100% disability compensation under the Workmen\u2019s Compensation Act in effect at the time of the injury must be granted.\nThe trial court awarded attorney\u2019s fees in the sum of $1,500.00, and appellant complains that this sum was based on the award of 40% disability. Appellant therefore asks that the attorney\u2019s fees be increased in the event the court determines that there was error in the amount of compensation awarded by the trial court.\nThe trial court is in a much better position than are we to place a reasonable fee for the work done by counsel for the appellant. In view of the fact that the case must be reversed for the entry of a judgment in accordance with this opinion, we will leave it to the discretion of the trial court as to whether the fee in the trial court should be increased.\nIn view of what has been said, therefore, the judgment o-f the trial court will be reversed, with instructions to enter judgment in accordance herewith, and at that time to allow a reasonable fee for appellant\u2019s attorney in the trial of this case. Appellant\u2019s attorney will be allowed a fee of $750.00 for the services in prosecuting this appeal. It is so ordered.\nCOMPTON, C. J., and MOISE, J., concur.", "type": "majority", "author": "CARMODY, Justice." } ], "attorneys": [ "Smith, Kiker & Kitts, Albuquerque, for appellant.", "Catron & Catron, Santa Fe, for appellees." ], "corrections": "", "head_matter": "380 P.2d 836\nJames E. SNEAD, Plaintiff-Appellant, v. ADAMS CONSTRUCTION COMPANY, Inc., Employer, and Fireman\u2019s Fund Indemnity Company, Insurer, Defendants-Appellees.\nNo. 7163.\nSupreme Court of New Mexico.\nApril 15, 1963.\nSmith, Kiker & Kitts, Albuquerque, for appellant.\nCatron & Catron, Santa Fe, for appellees." }, "file_name": "0094-01", "first_page_order": 126, "last_page_order": 130 }