{
  "id": 2865905,
  "name": "John Ivan VINCENT, Plaintiff-Appellee, v. UNITED NUCLEAR-HOMESTAKE PARTNERS, Employer, Defendant-Appellant",
  "name_abbreviation": "Vincent v. United Nuclear-Homestake Partners",
  "decision_date": "1976-10-26",
  "docket_number": "No. 2550",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "HENDLEY and SUTIN, JJ., concur."
    ],
    "parties": [
      "John Ivan VINCENT, Plaintiff-Appellee, v. UNITED NUCLEAR-HOMESTAKE PARTNERS, Employer, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nPlaintiff has silicosis. He was awarded compensation benefits under the Occupational Disease Disablement Law. Sections 59-11-1, et seq., N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1). Defendant appeals. The issues involve: (1) compensability for silicosis; (2) extent of disablement; (3) amount of compensation awarded; and (4) lumpsum payment.\nCompensability for Silicosis\nAt the time of trial, plaintiff was 43 years old. He had worked as an underground miner since he was 16 years of age. He was employed as an underground miner by defendant from July, 1966 to January 30, 1975. On or about February 10, 1975 he was informed he was suffering from silicosis. The trial court found that plaintiff \u201cis not able by reason of the disease of silicosis, to perform any work underground as a miner for remuneration or profit.\u201d The trial court also found that defendant was \u201cplaintiff\u2019s last employer in whose employment the plaintiff was last injuriously exposed to the hazards of employment resulting in silicosis.\u201d\nDefendant attacks the finding concerning last injurious exposure. It claims the evidence is uncontradicted that plaintiff had silicosis in 1964, before he went to work for defendant. Defendant asserts that proof of aggravation of the silicosis (in 1964) was required under \u00a7 59-11-31, supra, that there is no such proof and that plaintiff\u2019s benefits should be reduced accordingly.\nSection 59-11-31, supra, does not require proof of aggravation of the silicosis. The reduction in benefits provided for by that section is for occupational disease aggravated by other disease or infirmity \u201cnot itself compensable\u201d and for \u201cother cause not itself compensable\u201d which is aggravated by an occupational disease. See also \u00a7 59-11-22, supra. There is nothing showing that plaintiff\u2019s silicosis has been aggravated by other disease. Section 59-11-31, supra, is not applicable.\nThe evidence is that plaintiff had silicosis in 1964, that the condition progressed subsequent to that time, that he was injuriously exposed to harmful quantities of silicon dioxide dust during the 1966 to 1975 period that he worked for defendant. The proof is that plaintiff\u2019s last injurious exposure occurred while employed by defendant. Section 59-11-11, supra.\nPlaintiff\u2019s condition was compensable.\nExtent of Disablement\nThe trial court found that plaintiff was totally disabled from working underground as a miner by reason of silicosis. The trial court concluded that plaintiff was totally physically incapacitated by reason of silicosis to perform any work for remuneration or profit in the pursuit in which he was engaged. This conclusion tracks the statutory definition of \u201cdisablement\u201d in \u00a7 59-11 \u2014 4(a), supra.\nDefendant asserts the finding does not support the conclusion. It asserts the finding ignores plaintiff\u2019s ability to engage in pursuits other than underground mining. If the proof brings plaintiff within the statutory definition of disablement \u201c[t]hat he [plaintiff] is still able to work in other fields does not alter this situation.\u201d Holman v. Oriental Refinery, 75 N.M. 52, 400 P.2d 471 (1965); Herrera v. Fluor Utah, Inc., 89 N.M. 245, 550 P.2d 144 (Ct.App.1976). An unchallenged finding is that plaintiff had worked as an underground miner for 27 years. This finding, together with the finding that plaintiff is totally disabled from work as an underground miner, supports the conclusion of disablement. Plaintiff\u2019s work since 1975, other than as an underground miner, had no legal effect on the judgment of \u201cdisablement\u201d.\nAlthough plaintiff suffered a \u201cdisablement\u201d as defined in \u00a7 59 \u2014 11\u20144(a), supra, defendant asserts that plaintiff does not have a total disablement, referring us to work other than as an underground miner since 1975. \u201cThere is no specific statute providing for partial disability or disablement, however, a fair reading of the statutes involved implies that compensation should be paid for something less than total disablement.\u201d Defendant cites \u00a7 59-11-14(B), supra, which states the compensation payable for \u201ctotal disablement.\u201d It cites \u00a7 59 \u2014 11\u201415 (D), supra, which refers to \u201cthe condition of permanent total or permanent partial disablement the workman has suffered.\u201d Defendant\u2019s contention is that a finding of disablement is insufficient, that a finding of either \u201ctotal\u201d or \u201cpartial\u201d disablement is required to support an award of compensation.\nThe first paragraph of \u00a7 59-11-37, supra, provides for medical examination of employees awarded compensation for disablement. Two sentences from that paragraph relate to defendant\u2019s argument although defendant understandably relies only on the first sentence. The two sentences read:\n\u201cThe purpose of such examination shall be to determine whether the employee has recovered so that his earning power at any kind of work is restored, and the court shall be empowered to hear evidence upon such issue. If it is disclosed upon such hearing that termination of disablement has taken place, the court shall order termination of payment of compensation.\u201d\nCompensation is payable for \u201cdisablement\u201d. Disablement is defined in terms of \u201ctotal physical incapacity by reason of an occupational disease ... to perform any work ... in the pursuit\u201d in which the workman was engaged. Section 59-ll-4(a), supra. With this definition, Holman v. Oriental Refinery, supra, held that work in other pursuits does not alter the right to compensation for an occupational disease. The sentence in \u00a7 59-11-37, supra, on which defendant relies (concerning \u201cany kind of work\u201d) does not change the provision that benefits are payable for disablement by reason of an occupational disease. The provisions in \u00a7 59-11-14(33) and \u00a7 59-11-15(D), supra, which refer to total and partial disablement, do not change the definition of disablement and do not provide that compensation is payable for partial disablement. The word \u201ctotal\u201d in \u00a7 59-ll-14(B), supra, is a redundancy ; the only disablement under our statute is for total physical incapacity by reason of an occupational disease.\nThe trial court did not err in failing to find that plaintiff\u2019s disablement was either \u201ctotal\u201d or \u201cpartial\u201d because our occupational disease statute does not provide for compensation on that basis. Compare, Ojinaga v. Dressman, 83 N.M. 508, 494 P. 2d 170 (Ct.App.1972). Compensation is awarded only for disablement as defined in \u00a7 59-11-4 (c), supra. The findings support the conclusion of disablement m this case; plaintiff was entitled to compensation for that disablement.\nAmotmt of Compensation\nLimitations on the benefits payable for silicosis have been a part of the occupational disease law since its enactment in 1945. The original statute limited the amount to $800.00 with additional increments of $70.00 for each calendar month \u201cafter this act becomes effective\u201d up to a maximum aggregate amount of $5,000.00. Laws 1945, ch. 135, \u00a7 18. A 1949 amendment raised the initial amount to $1,200.00, the monthly increments to $100.00 and the maximum to $7,500.00. Laws 1949, ch. 107, \u00a7 1.\nA 1965 amendment raised the initial amount to $10,000.00, changed the increments from monthly to annually, provided for an annual increment of $1,000.00 and provided a maximum aggregate of $20,000.00. Laws 1965, ch. 299, \u00a7 16. Amendments in 1967, 1969 and 1971 raised the maximum aggregate but made no other changes in the statute as amended in 1965.\nThis issue involves the aggregate amount of compensation payable for plaintiff\u2019s silicosis. Section 59-11-19, supra, reads:\n\u201cDisablement or death payment due to silicosis or asbestosis \u2014 Amount limited.\u2014 The maximum compensation benefits payable under the New Mexico Occupational Disease Disablement Law [59 \u2014 11\u2014 1 to 59-11-42], exclusive of medical and funeral benefits, for disablement or death due to silicosis or asbestosis, notwithstanding anything in this act, as amended, otherwise provided, shall not exceed the following:\n\u201cA. If disablement or death occurs during the first year in which this act becomes effective, the sum of ten thousand dollars ($10,000) ; if disablement or death occurs during the second year after this act becomes effective, the sum of eleven thousand dollars ($11,000);\n\u201cB. Thereafter the total maximum compensation payable for disablement and death increases at the rate of one thousand dollars ($1,000) for each year;\n\u201cC. In no event shall the aggregate amount of benefits payable by defendants exceed a total of twenty-eight thousand five hundred dollars ($28,500).\u201d\nThe trial court awarded the aggregate amount of $28,500.00; defendant asserts the amount should be less, contending the 1965 provision for $10,000.00 plus $1,000.00 annual increments results in a maximum aggregate of $19,000.00. For defendant\u2019s contention to be correct, \u201cthis act\u201d in \u00a7 59-11-19, supra, must refer to the 1965 amendment and not to the original enactment.\nThe first paragraph of \u00a7 59-11-19, supra, refers to maximum benefits \u201cnotwithstanding anything in this act, as amended, otherwise provided\u201d. This phrase, except for \u201cas amended\u201d, has been in the statute since its original enactment. \u201cAs amended\u201d was inserted into the phrase by the 1965 amendment.\nParagraph A of \u00a7 59-11-19, supra, states that \u201cIf disablement or death occurs during the first year in which this act becomes effective\u201d then a certain sum is payable. The only change in the quoted phrase since the original enactment was the change from \u201ccalendar month\u201d to \u201cyear\u201d in 1965.\nThe words \u201cthis act\u201d in \u00a7 59-11-19, supra, refers to the original enactment of 1945; it does not refer to the 1965 amendment. This meaning is established by the legislative history which we have reviewed. This meaning is in accordance with the rule that:\n\u201c[A] statute should be read as a whole, as to future transactions, the provisions introduced by the amendatory act should be read together with the provisions of the original section that were re-enacted in the amendatory act or left unchanged thereby, as if they had been originally enacted as one section.\u201d\nFrkovich v. Petranovich, 48 N.M. 382, 151 P.2d 337, 155 A.L.R. 295 (1944); see Janney v. Fullroe, 47 N.M. 423, 144 P.2d 145 (1943); Treider v. Doherty and Company, 86 N.M. 735, 527 P.2d 498 (Ct.App.1974).\nThe meaning of \u201cthis act\u201d not having been changed since the original enactment of 1945, the maximum aggregate was not to be calculated from 1965, but from 1945. The maximum aggregate of $28,500.00 applies to plaintiff\u2019s compensation.\nLump-Sum Payment\nThe trial court awarded plaintiff a lump-sum payment of $28,500.00. Defendant contends there is no authority for lump-sum payment. Section 59-11-24, supra, provides: \u201cThe court may approve an agreement for the conversion of the compensation into a lump-sum payment.\u201d There has been no such agreement; the trial court ordered the lump-sum award. Plaintiff relies on decisions involving our workmen\u2019s compensation statutes. These statutes differ from \u00a7 59-11-24, supra. See \u00a7 59-10-13.5(B), N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, Supp.1975) and \u00a7 59-10-25(B), N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1).\nPlaintiff would find statutory authority for a lump-sum award of occupational disease compensation benefits in the reference to \u201caggregate amount of benefits\u201d in \u00a7 59-11-19, supra. As used in \u00a7 59-11-19, supra, \u201caggregate\u201d means the collective amount of benefits; it does not mean a lump-sum. Webster\u2019s Third New International Dictionary (1966), \u201caggregate\u201d. Plaintiff\u2019s compensation is payable in installments, there being no authority for the trial court to order a lump-sum payment.\nOral argument is unnecessary. The award of occupational disease compensation benefits in the aggregate amount of $28,500.00 is affirmed. The lump-sum payment is reversed. The cause is remanded for entry of a corrected judgment consistent with this opinion. Plaintiff is awarded $1,750.00 for the services of his attorney in this appeal.\nIT IS SO ORDERED.\nHENDLEY and SUTIN, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Walter K. Martinez, Grants, for appellant.",
      "LeRoi Farlow, LeRoi Farlow, P.A., William C. Madison, Albuquerque, for appellee."
    ],
    "corrections": "",
    "head_matter": "556 P.2d 1180\nJohn Ivan VINCENT, Plaintiff-Appellee, v. UNITED NUCLEAR-HOMESTAKE PARTNERS, Employer, Defendant-Appellant.\nNo. 2550.\nCourt of Appeals of New Mexico.\nOct. 26, 1976.\nCertiorari Denied Nov. 24, 1976.\nWalter K. Martinez, Grants, for appellant.\nLeRoi Farlow, LeRoi Farlow, P.A., William C. Madison, Albuquerque, for appellee."
  },
  "file_name": "0704-01",
  "first_page_order": 740,
  "last_page_order": 744
}