{ "id": 2837244, "name": "George BRISCOE, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION and Montgomery Ward and Company, Defendants-Appellees", "name_abbreviation": "Briscoe v. Hydro Conduit Corp.", "decision_date": "1975-12-16", "docket_number": "No. 2072", "first_page": "568", "last_page": "572", "citations": [ { "type": "official", "cite": "88 N.M. 568" }, { "type": "parallel", "cite": "544 P.2d 283" } ], "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": "69 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790542 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0412-01" ] }, { "cite": "74 N. M. 712", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2798717 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/74/0712-01" ] }, { "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": "87 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835488 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0476-01" ] }, { "cite": "88 N.M. 157", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838050 ], "weight": 4, "pin_cites": [ { "page": "780" }, { "page": "801" } ], "opinion_index": 1, "case_paths": [ "/nm/88/0157-01" ] }, { "cite": "83 N.M. 766", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331130 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "767" }, { "page": "978" } ], "opinion_index": 1, "case_paths": [ "/nm/83/0766-01" ] }, { "cite": "87 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835488 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/nm/87/0476-01" ] }, { "cite": "83 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5341601 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/83/0567-01" ] }, { "cite": "84 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764389 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/84/0109-01" ] }, { "cite": "87 N.M. 476", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835488 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "478" }, { "page": "1329" } ], "opinion_index": 2, "case_paths": [ "/nm/87/0476-01" ] } ], "analysis": { "cardinality": 541, "char_count": 10628, "ocr_confidence": 0.813, "pagerank": { "raw": 1.8022567860663945e-07, "percentile": 0.7165856001643339 }, "sha256": "013152471f65af55eb43c6339a36daea03489f20bc12584146db87e1344c2d87", "simhash": "1:996dacca455ae513", "word_count": 1714 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN, J., specially concurs.", "HERNANDEZ, J., dissents." ], "parties": [ "George BRISCOE, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION and Montgomery Ward and Company, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nPlaintiff filed an action pursuant to the Workmen\u2019s Compensation Act (Sections 59-10-1 through 59-10-37, N.M.S.A.1953 (2d Repl. Vol. 9, 1974, pt. 1)) alleging total disability and seeking a lump sum award pursuant to \u00a7 59-10-18.2, supra.\nPlaintiff\u2019s affidavit admitted the $75.00 weekly payment and the following sworn statements were set forth :\n\u201cThat defendants have failed to make payment of a bill in the amount of $50.-00 for diagnostic studies made of the plaintiff at the direction of Dr. Chester, one of the physicians to whom plaintiff has been referred by defendants.\n\u201cThat plaintiff has not been employed or able to do any type of work since on or about July 1, 1974 except attempting to perform work as a bartender for a few hours under a rehabilitation program and that he has performed no other work because of said disability, except in attempting to sell Indian jewlery on a limited part time basis for himself.\n\u201cThat plaintiff is married but that his wife is not and has not been employed and is dependent upon him for support, in addition to his four children: Gerald, born February 8, 1959; George, Jr., born August 24, 1960; Georgianna, born December 16, 1961; and Mike, born November 22, 1964, who reside with him in a mobile home. That he has lost his mobile home and car because of inability to make payment of installments due, and is temporarily housed in a mobile home owned by a friend.\u201d\nThe trial court, after hearing ordered: \u201c. . . that the Complaint herein should be, and is hereby dismissed, on the ground that said Complaint is prematurely filed.\u201d The majority disagree but for different reasons. My reasoning is as follows.\nSection 59-1\u00dc-36, supra, states in part:\n\u201c . . . No claim shall be filed by any workman who is receiving maximum compensation benefits; ...\u201d [Emphasis added].\nSchiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975) held:\n\u201cWhen 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 [Rayburn v. Boys Super Market, Inc., 74 N. M. 712, 397 P.2d 953] and Nasci [Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913] that medical expenses are 'compensation\u2019, we conclude that medical expenses are compensation for the purpose of allowing attorney fees under \u00a7 59-10-23 (D). ...\u201d\nIn light of Schiller and the liberal construction philosophy stated therein plaintiff\u2019s claim was not premature. The $50.00 medical bill had not been paid. Medical payments have been ruled to be compensation for the purpose of allowing attorney fees under \u00a7 59-10-23(D), supra. If medical bills arc compensation for one purpose they should be compensation for all purposes. I fail to find within the Workmen\u2019s Compensation Act statutory language which would lead one to believe there are differing kinds of compensation.\nHaving decided the issue as I have I need not reach the questions decided by Judge Sutin, in the affirmative, of whether a party in interest (plaintiff), who is being paid maximum compensation benefits, is entitled pursuant to \u00a7 59-10-13.5 (B), supra, to a determination of total permanent disability, and if so, then to a determination of a lump sum award.\nReversed.\nIt is so ordered.\nSUTIN, J., specially concurs.\nHERNANDEZ, J., dissents.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI specially concur.\nThe question for decision is whether the complaint for a lump-sum award was prematurely filed.\nIn 1969, the legislature amended \u00a7 59-10-13 of the Workmen\u2019s Compensation Act. It added a subsection B. It read:\nWhenever the court determines in cases of total permanent disability or death that it is for the best interests of the parties entitled to compensation, and after due notice to all parties in interest of a hearing, the liability of the employer for compensation may be discharged by the payment of a lump sum .... [Emphasis added.]\nIn 1973, this subsection was amended. The word \u201cWhenever\u201d was deleted. The following italicized words were substituted :\nIf, upon petition of the party in interest, the court determines in cases of total permanent disability . . . that it is for the best interests of the parties entitled to compensation, . . . the liability of the employer for compensation may be discharged by the payment of a lump sum ....\nWhat is meant by the phrase \u201cin cases of total permanent disability\u201d ? Defendants rely on Sanchez v. Kerr McGee Company, Inc., 83 N.M. 766, 497 P.2d 977 (Ct.App. 1972). Here we held:\nSection 59-10-13.5(B), supra, has as a prerequisite a determination of \u201ctotal permanent disability.\u201d The claim filed in the trial court was not a case of \"total permanent disability.\u201d [Emphasis added.] [83 N.M. at 767, 497 P.2d at 978].\nWe did not determine the meaning of the phrase. We refused to do so because the claim filed did not give rise to the application of \u00a7 59-10-13.5(B).\nNow, we are confronted with a case \u201cof total permanent disability\u201d. The legislative intent is clear. It gave to plaintiff the right to file a petition, a separate claim, a separate proceeding, under the Workmen\u2019s Compensation Act. Why? For what purpose? To determine two questions: (1) Is this a case of \u201ctotal permanent disability\u201d? If it is not, the Court need proceed no further. If it is, (2) Is it \u201cfor the best interests of the parties entitled to compensation\u201d to grant a lump sum award ?\nThe purpose of \u00a7 59-10-13.5 is clear. It gives to a workman an early opportunity to solve an economic problem. If successful, he may not be forced to accept maximum installment payments for 550 weeks under \u00a7 59-10-18.2.\nIf we do not adopt this meaning, \u00a7 59-10-13.5 (B) has no purpose.\nUnder this section, a petition is not prematurely filed when a workman contends that he is totally and permanently disabled.\nPlaintiff\u2019s complaint and affidavit established that plaintiff was totally and permanently disabled at the time the petition was filed. The defendants did not answer. The defendants admitted, by affidavit, they were paying plaintiff the maximum amount of compensation benefits provided by law. This is an admission of total disability. They did not deny that plaintiff was permanently disabled. The claim filed was a case of \u201ctotal permanent disability\u201d.\nSection 59-10-25(B) provides:\nThe district court in which the right to compensation is enforceable at all times has the right and power to authorize, direct or approve any settlement or compromise of any claim for compensation . . . for the amount and payable in . . . lump sum or in any other way and manner as the court may approve. [Emphasis added.]\nNo settlement or compromise is present. Section 59-10-25(B) is not applicable.\nThe only other problem to resolve is the relationship between \u00a7 59-10-13.5 and \u00a7 59-10-36. The latter section reads:\nNo claim shall be filed by any workman who is receiving maximum compensation benefits; . . . . [Emphasis added.]\nThis section \u201cbars a suit to establish liability for compensation.\u201d Arther v. Western Company of North America, 88 N.M. 157, 538 P.2d 799, 780 (Ct.App.1975). Section 59-10-36 is not applicable because liability was admitted by payment of workmen\u2019s compensation benefits.\nDefendants also rely on Arther, supra. This case is contra to defendant\u2019s contentions. Here, a death occurred. The admission in the answer established liability for death. The Court said:\nThis admission of liability sufficiently established plaintiff\u2019s right to compensation and authorized a lump-sum award under \u00a7 59-10-25 (B), supra. [Emphasis added.] [538 P.2d at 801],\nI would agree with this conclusion if \u00a7 59-10-13.5 (B) were substituted for \u00a7 59-10-25 (B).\nIn Arther, the Court concluded that the findings of the trial court of directing a lump-sum award were not in the best interests of plaintiff, the dependent widow.\nPlaintiff\u2019s petition is not a claim for compensation. Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975) is not in point. This case holds that medical expenses are \u201ccompensation\u201d for purposes of allowing attorney fees where the claimant recovers medical and hospital expenses. In the instant case, plaintiff does not seek such recovery. He would have no claim for such recovery.\nThis case should be reversed. The plaintiff is entitled to a hearing (1) for a determination of \u201ctotal permanent disability\u201d, and if so found, then (2) a determination of a lump-sum award according to the best interests of the plaintiff.", "type": "concurrence", "author": "SUTIN, Judge" }, { "text": "HERNANDEZ, Judge\n(dissenting).\nI respectfully dissent.\nAppellant based his petition for a lump sum payment of benefits upon \u00a7\u00a7 59\u201410\u201413.5(B) and 59-10-25(B) of the New Mexico Workmen\u2019s Compensation Act, N. M.S.A.1953 (2d Repl. Vol. 9, 1974, pt. 1).\nThe appellant has received maximum compensation benefits allowable under the Workmen\u2019s Compensation Act which the employer has paid without default. Therefore appellant\u2019s petition was prematurely filed under the' provisions of \u00a7 59-10-36, N.M.S.A.1953 (2d Repl. Vol. 9, 1974, pt. 1) which states, in part:\n\u201c . . . No claim shall be filed by any workman who is receiving maximum compensation benefits; . . . \u201d [Emphasis added.]\nThe majority rely upon the holding in Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975). The issue presented in that case was whether, under the New Mexico Workmen\u2019s Compensation Act, \u00a7\u00a7 59-10-1 through 59-10-37, supra, the trial court could award attorney fees to the claimant when only medical and hospital expenses are recovered by the plaintiff. The Supreme Court concluded \u201cthat medical expenses are compensation for the purpose of allowing attorney fees under \u00a7 59-10-23(D).\u201d Schiller, supra, at 478, 535 P.2d at 1329. [But cf. 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)].\nAnother distinction in Schiller, is that the plaintiff sued for and recovered medical and hospital expenses incurred by him. In the instant case, the unpaid medical bill was incurred at the direction of the defendant. It remains the defendant\u2019s obligation. I do not see that Schiller is applicable here.", "type": "dissent", "author": "HERNANDEZ, Judge" } ], "attorneys": [ "James A. Mungle, Smith, Ransom & Gil-strap Law Offices, Albuquerque, for plaintiff-appellant.", "Vance Mauney, P. A., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "544 P.2d 283\nGeorge BRISCOE, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION and Montgomery Ward and Company, Defendants-Appellees.\nNo. 2072.\nCourt of Appeals of New Mexico.\nDec. 16, 1975.\nJames A. Mungle, Smith, Ransom & Gil-strap Law Offices, Albuquerque, for plaintiff-appellant.\nVance Mauney, P. A., Albuquerque, for defendants-appellees." }, "file_name": "0568-01", "first_page_order": 598, "last_page_order": 602 }