{ "id": 2835488, "name": "Graham R. SCHILLER, Petitioner, v. SOUTHWEST AIR RANGERS, INC., Employer, and Royal Globe Insurance Company, Insurer, Respondents, and Health and Social Services Department, Respondent", "name_abbreviation": "Schiller v. Southwest Air Rangers, Inc.", "decision_date": "1975-04-04", "docket_number": "No. 10324", "first_page": "476", "last_page": "480", "citations": [ { "type": "official", "cite": "87 N.M. 476" }, { "type": "parallel", "cite": "535 P.2d 1327" } ], "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": "76 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501466 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0234-01" ] }, { "cite": "69 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790542 ], "weight": 6, "year": 1961, "pin_cites": [ { "page": "415" }, { "page": "915" }, { "page": "416" }, { "page": "916" } ], "opinion_index": 0, "case_paths": [ "/nm/69/0412-01" ] }, { "cite": "74 N.M. 712", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2798717 ], "weight": 4, "year": 1964, "pin_cites": [ { "page": "716" }, { "page": "955" }, { "page": "716" }, { "page": "955" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0712-01" ] }, { "cite": "79 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747359 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/79/0179-01" ] }, { "cite": "83 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341601 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/83/0567-01" ] }, { "cite": "84 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764389 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/84/0109-01" ] }, { "cite": "66 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848670 ], "weight": 2, "year": 1960, "opinion_index": 1, "case_paths": [ "/nm/66/0369-01" ] }, { "cite": "72 N.M. 447", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856368 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/nm/72/0447-01" ] }, { "cite": "77 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806030 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0408-01" ] }, { "cite": "75 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377165 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/nm/75/0174-01" ] }, { "cite": "77 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807782 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0455-01" ] }, { "cite": "315 P.2d 217", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2775732, 2776229 ], "year": 1957, "opinion_index": 1, "case_paths": [ "/nm/63/0148-01", "/nm/63/0147-01" ] }, { "cite": "63 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775732 ], "year": 1957, "opinion_index": 1, "case_paths": [ "/nm/63/0148-01" ] }, { "cite": "71 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348871 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/71/0011-01" ] }, { "cite": "76 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501466 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0234-01" ] }, { "cite": "69 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790542 ], "weight": 2, "year": 1961, "opinion_index": 1, "case_paths": [ "/nm/69/0412-01" ] }, { "cite": "74 N.M. 712", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2798717 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/nm/74/0712-01" ] }, { "cite": "79 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747359 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/79/0179-01" ] }, { "cite": "83 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341601 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0567-01" ] }, { "cite": "84 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764389 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/84/0109-01" ] } ], "analysis": { "cardinality": 667, "char_count": 13775, "ocr_confidence": 0.787, "pagerank": { "raw": 4.1406550013894494e-07, "percentile": 0.9111426959641277 }, "sha256": "4212012ff603f34d1593f7a515d32349f005ca99aea4059fbecc55adda17205c", "simhash": "1:1f89e08a7dc7ec42", "word_count": 2192 }, "last_updated": "2023-07-14T21:55:50.541053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McMANUS, C. J., and MONTOYA and MARTINEZ, JJ., concur.", "OMAN, J., dissents." ], "parties": [ "Graham R. SCHILLER, Petitioner, v. SOUTHWEST AIR RANGERS, INC., Employer, and Royal Globe Insurance Company, Insurer, Respondents, and Health and Social Services Department, Respondent." ], "opinions": [ { "text": "OPINION\nSTEPHENSON, Justice.\nThe sole question which concerns us here is whether, under the New Mexico Workmen\u2019s Compensation Act, the trial court, in a suit by an injured workman, can award an attorney\u2019s fee to the claimant where only medical and hospital expenses are recovered. In Schiller v. Southwest Air Rangers, Inc., Ct.App., 87 N.M. 476, 535 P.2d 1327 (decided January 15, 1975), the Court of Appeals in a memorandum opinion answered that query in the negative. It held, inter alia, that in a workman\u2019s compensation case where only medical and hospital expenses are recovered, attorney fees cannot be awarded under \u00a7 59-10-23(D), N.M.S.A.1953 because medical expenses are not \u201ccompensation\u201d, citing Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (Ct.App.1972) and Lasater v. Home Oil Company, 83 N.M. 567, 494 P.2d 980 (Ct.App.1972).\nWe granted certiorari and reverse the Court of Appeals.\nThe first paragraph of \u00a7 59-10-23 states:\n\u201cIt shall be unlawful for any attorney to receive or agree to receive any fees or payment directly or indirectly in connection with any claim for compensation under the Workmen\u2019s Compensation Act * * * except as hereinafter provided\nSubdivision D. of that statute provides that where \u201ccompensation\u201d has been refused and the claimant thereafter collects \u201ccompensation\u201d through court proceedings in excess of the amount offered by the employer, then reasonable attorney fees shall be allowed by the trial court or by the Supreme Court on appeal.\nWuenschel, supra, Lasater, supra, and Cromer v. J. W. Jones Construction Company, 79 N.M. 179, 441 P.2d 219 (Ct.App.1968) all support the Court of Appeals\u2019 holding. However, the rule in those cases is erroneously based on two decisions of this Court which do not support the Court of Appeals interpretation of \u00a7 59\u201410\u201423(D). See Rayburn v. Boys Super Market, Inc., 74 N.M. 712, 716, 397 P.2d 953, 955 (1964); Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913 (1961). If anything, they support the converse.\nNasci construed \u00a7 59-10-13, N.M.S.A. 1953, which requires a workman to file a claim within one year after the failure or refusal of the employer to pay \u201cany installment of compensation\u201d as not applying to medical expenses because medical expenses are not payable in installments, and are not, therefore, \u201cinstallments of compensation.\u201d We said that this interpretation left \u201cunanswered the question of whether [medical expenses] are \u2018compensation.\u2019 \u201d 69 N.M. at 415, 367 P.2d at 915. Though the Nasci court avoided deciding whether medical payments are compensation, it stated at one point that:\n\u201c * * * [t]he compensation to which he is entitled may be nothing more than medical and surgical payments, but the right must have arisen out of an accidental injury in the course of employment.\u201d 69 N.M. at 416, 367 P.2d at 916.\nThe reference to medical and surgical expenses as compensation is unmistakable.\nThe Rayburn decision was based on \u00a7 59-10-23(D). The court held that attorney fees were not allowable under the statute because \u201cthe total amount of the employer\u2019s liability, including the medical and hospital expenses, was less than the $3,200.00 offered in settlement.\u201d 74 N.M. at 716, 397 P.2d at 955. Medical and surgical expenses were thus considered in determining whether the claimant collected \u201ccompensation\u201d in excess of the amount offered in settlement.\nWhen we consider the long recognized principle that the workman\u2019s compensation act is to be liberally construed in favor of the employee (Kosmicki v. Aspen Drilling Company, 76 N.M. 234, 414 P.2d 214 (1966)), together with the implicit recognition in Rayburn and Nasci that medical expenses are \u201ccompensation\u201d, we conclude that medical expenses are compensation for the purpose of allowing attorney fees under \u00a7 59-10-23(D). Wuenschel, supra, Lasater, supra, and Cromer, supra are overruled to that extent.\nThe Court of Appeals and the District Court of the Second Judicial District are reversed insofar as they held and determined that medical and hospital expenses are not \u201ccompensation\u201d within the meaning of \u00a7 59-10-23(D). The case is remanded to the district court with directions to set aside the portion of its Amended Judgment denying attorney\u2019s fees, and to proceed in the manner prescribed by law to fix and allow attorney\u2019s fees for services in the trial court.\nAttorney\u2019s fees of $750.00 are allowed for services on appeal.\nIt is so ordered.\nMcMANUS, C. J., and MONTOYA and MARTINEZ, JJ., concur.\nOMAN, J., dissents.", "type": "majority", "author": "STEPHENSON, Justice." }, { "text": "OMAN, Justice\n(dissenting).\nI am unable to agree with the majority that this court implicitly recognized in Rayburn v. Boys Super Market, Inc., 74 N.M. 712, 397 P.2d 953 (1964) and Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913 (1961), that \u201cmedical expenses\u201d are \u201ccompensation\u201d within the contemplation of these terms as used in our Workmen\u2019s Compensation Act, and, consequently, that \u201cmedical expenses\u201d are included within the meaning of \u201ccompensation\u201d as used in \u00a7 59-10-23(D), N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1 (1974). The question as to whether \u201ccompensation\u201d included \u201cmedical expenses\u201d was not presented or decided in either case.\nIt is true, as shown by the majority opinion, that at one point in the Nasci decision, language was used which equated \u201cmedical and surgical payments\u201d with \u201ccompensation,\u201d but the court clearly recognized, and so stated, that \u201cwhether medical payments are compensation or not we need not decide.\u201d In the light of this express statement that the question need not be decided, I am unable to find an implicit recognition by the court that \u201cmedical expenses\u201d are \u201ccompensation\u201d simply because of the language quoted above by the majority.\nIn the Rayburn case, as I interpret the pertinent language, it was nothing more than an observation by the court that the \u201ccompensation\u201d and the \u201cmedical and hospital expenses\u201d to which plaintiff was entitled together totalled less than the amount offered, and, therefore, attorneys fees were necessarily disallowed. The exact language of the court was:\n\u201cSince it is conceded that the period of disability could not have exceeded 19 weeks, the total amount of the employer\u2019s liability, including the medical and hospital expenses, was less than the $3,200.00 offered in settlement. * * * >r\nI agree with the majority that the Workmen\u2019s Compensation Act should be liberally construed in favor of the workman. Lucero v. C. R. Davis Contracting Co., 71 N.M. 11, 375 P.2d 327 (1962); Briggs v. Zia Company, 63 N.M. 148, 315 P.2d 217 (1957); Cromer v. J. W. Jones Const. Company, 79 N.M. 179, 441 P.2d 219 (Ct.App.1968). However, in Kosmicki v. Aspen Drilling Company, 76 N.M. 234, 414 P.2d 214 (1966), the case relied upon by the majority, the court had the following to say concerning the construction of our Workmen\u2019s Compensation Act:\n\u201c * * *. In so concluding, we have not overlooked our long-recognized rule of liberal construction of the workmen\u2019s compensation law in favor of claimants, [citations omitted] However, to reverse the trial court here in the name of liberal construction would have the effect of making the definition of \u2018dependent\u2019 contained in \u00a7 59-10-12(j), supra, meaningless. The provisions of this section may not be disregarded in the name of liberal construction. * * * \u201d\nSee also the following cases which hold that provisions of our Act may not be disregarded in the name of liberal construction: Graham v. Wheeler, 77 N.M. 455, 423 P.2d 980 (1967); Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965), appeal after remand, 77 N.M. 408, 423 P.2d 603 (1967); Luvaul v. A. Ray Barker Motor Company, 72 N.M. 447, 384 P.2d 885 (1963); Selgado v. New Mexico State Highway Department, 66 N.M. 369, 348 P.2d 487 (1960).\nThroughout the entire history of our Workmen\u2019s Compensation Act, \u201ccompensation\u201d has never been held to include or embrace \u201cmedical, hospital or surgical\u201d services or expenses, and the Legislature has demonstrated its awareness of the difference between the two, insofar as an award of attorneys fees is concerned, by making express provisions for such an award upon the recovery of each, when it deemed advisable.\nAt all times since its enactment in 1929 [Laws of 1929, ch. 113], the New Mexico Workmen\u2019s Compensation Act has provided for attorneys fees to an employee who collects \u201ccompensation\u201d through court proceedings after \u201ccompensation\u201d has been refused him. Ch. 113, \u00a7 22 [1929], Laws of N.M. 230-31; N.M.S.A.1929 (Comp.), \u00a7 156-122; N.M.S.A.1941, \u00a7 57-923; \u00a7 59-10-23, N.M.S.A.1953 (1954); \u00a7 59-10-23, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974). However, until 1947, attorneys fees were not allowed for the recovery by court proceedings of medical, surgical or hospital expenses. In 1947 the Legislature provided that upon the granting by the court of additional medical, surgical and hospital expenses:\n\u201cThe court, in addition to allowing for such additional services, shall allow to the employee\u2019s attorney, a reasonable attorney\u2019s fee for services rendered to the employee in connection with such application, to be paid by the employer or his insurer.\u201d Ch. 87, \u00a7 1, [1947], Laws of N.M. 128-29.\nAlthough there were some modifications in the language of this provision, it continued to be the law that attorneys fees could be awarded if additional medical, surgical or hospital expenses were awarded. See \u00a7 59-10-19, N.M.S.A.1953 (1954); \u00a7 59-10-19.1(B), N.M.S.A.1953 (Supp.1959); Ch. 269, \u00a7 3, [1963] Laws of N.M. 580-81, which amended \u00a7 59-10-19.1, N.M.S.A. 1953; Vol. 1, ch. 252, \u00a7 4(B) [1965] Laws of N.M. 742, by which \u00a7 59-10-19.1, N.M.S.A.1953 was further amended; Ch. 261, \u00a7 5 [1971], Laws of N.M. 957-58, by which \u00a7 59-10-19.1, N.M.S.A.1953, was further amended and the provision for allowance of attorneys fees, as well as other provisions, was deleted. The 1971 law was in effect when the accident out of which this cause arose occurred on August 23, 1971.\nSection 59-10-19.1 was further amended by Ch. 240, \u00a7 9 [1973], Laws of N.M. 938-40, which appears as \u00a7 59-10-19.1, N. M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974). However, again no provision was made for an award of attorneys fees for services rendered in securing an award for medical, hospital or surgical services.\nI agree with the majority that the decisions in Rayburn v. Boys Super Market, Inc., supra, and Nasci v. Frank Paxton Lumber Company, supra, do not completely and precisely support the conclusions reached by the Court of Appeals in Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (Ct.App.1972) and Lasater v. Home Oil Company, 83 N. M. 567, 494 P.2d 980 (Ct.App.1972). However, I agree with the results reached by the Court of Appeals in those cases on the claims for awards of attorneys fees for medical expenses. I base this upon the entire legislative history of our Workmen\u2019s Compensation Act as above outlined; upon the fact that the Legislature eliminated from the Act in 1971 the provision for attorneys fees for hospital, medical and surgical expense awards; upon the fact that the Legislature has not enacted legislation changing the law on the question of attorneys fees as announced in Wuenschel v. New Mexico Broadcasting Corp., supra, and Lasater v. Home Oil Company, supra; and upon the language throughout the Act distinguishing between \u201ccompensation\u201d and \u201cmedical, surgical and hospital\u201d expenses, and providing for an award of attorneys fees only upon an award of \u201ccompensation.\u201d\nTo demonstrate my contention that the Legislature has clearly distinguished between \u201ccompensation\u201d and \u201cmedical, surgical and hospital\u201d expenses, I call attention in particular to the language of \u00a7\u00a7 59 \u2014 10\u201418.8(B) and 59-10-19.1(A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974). These sections have been amended from time to time as to amounts and in other particulars not here relevant, but, insofar as here pertinent, they have long been a part of our Workmen\u2019s Compensation Act. These two sections of our statutes provide:\n\u201c59-10-18.8. Limitations on compensation benefits. * * *.\n\u201cB. compensation benefits for disability or death, or any combination of disabilities, or any combination of disabilities and death, shall not exceed thirty-two thousand five hundred dollars ($32,500) effective July 1, 1973 and not to exceed thirty-seven thousand five hundred dollars ($37,500) effective July 1, 1974 exclusive of increased compensation which may be awarded under sections 59-10-7 and 59-10-18.7 NMSA 1953, and exclusive of attorney fees awarded under section 59-10-23 NMSA 1953;\u201d\n\u201c59-10-19.1. Medical and related benefits \u2014 Artificial members. \u2014 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, osteophathic, 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.\u201d\nI would quash the writ of certiorari heretofore directed to the Court of Appeals as having been improvidently granted. The majority disagree. Therefore, I dissent.", "type": "dissent", "author": "OMAN, Justice" } ], "attorneys": [ "Horton & Werner, Quincy D. Adams, Adams & Foley, Albuquerque, for petitioner.", "Jerrald J. Roehl, J. Duke Thornton, Shaffer, Butt, Jones & Thornton, Albuquerque, for respondents Southwest Air Rangers & Royal Globe Ins.", "Toney Anaya, Atty. Gen., Stephen Spraque, Agency Asst. Atty. Gen., Santa Fe, for respondent Health and Social Services Dept." ], "corrections": "", "head_matter": "535 P.2d 1327\nGraham R. SCHILLER, Petitioner, v. SOUTHWEST AIR RANGERS, INC., Employer, and Royal Globe Insurance Company, Insurer, Respondents, and Health and Social Services Department, Respondent.\nNo. 10324.\nSupreme Court of New Mexico.\nApril 4, 1975.\nHorton & Werner, Quincy D. Adams, Adams & Foley, Albuquerque, for petitioner.\nJerrald J. Roehl, J. Duke Thornton, Shaffer, Butt, Jones & Thornton, Albuquerque, for respondents Southwest Air Rangers & Royal Globe Ins.\nToney Anaya, Atty. Gen., Stephen Spraque, Agency Asst. Atty. Gen., Santa Fe, for respondent Health and Social Services Dept." }, "file_name": "0476-01", "first_page_order": 502, "last_page_order": 506 }