{ "id": 2869439, "name": "Dennis MARTINEZ, Plaintiff-Appellant, v. EARTH RESOURCES COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellees", "name_abbreviation": "Martinez v. Earth Resources Co.", "decision_date": "1977-06-20", "docket_number": "No. 2815", "first_page": "590", "last_page": "595", "citations": [ { "type": "official", "cite": "90 N.M. 590" }, { "type": "parallel", "cite": "566 P.2d 838" } ], "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": "51 N.M. 121", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578345 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/nm/51/0121-01" ] }, { "cite": "88 N.M. 292", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841135 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0292-01" ] }, { "cite": "41 N.M. 421", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571444 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0421-01" ] }, { "cite": "75 N.M. 672", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5372643 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0672-01" ] }, { "cite": "81 N.M. 28", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367830 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0028-01" ] }, { "cite": "85 F.Supp. 410", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 683643 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/f-supp/85/0410-01" ] }, { "cite": "87 N.M. 278", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2834513 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0278-01" ] }, { "cite": "74 N.M. 277", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2798034 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/nm/74/0277-01" ] }, { "cite": "47 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562202 ], "weight": 5, "year": 1943, "pin_cites": [ { "page": "268" }, { "page": "326" } ], "opinion_index": 1, "case_paths": [ "/nm/47/0260-01" ] }, { "cite": "64 N.M. 413", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344321 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/64/0413-01" ] }, { "cite": "66 N.M. 325", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847548 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "327" }, { "page": "753" } ], "opinion_index": 1, "case_paths": [ "/nm/66/0325-01" ] } ], "analysis": { "cardinality": 760, "char_count": 18155, "ocr_confidence": 0.834, "pagerank": { "raw": 1.9581376409510176e-07, "percentile": 0.737657291988838 }, "sha256": "e660947cd80368a37cc09735f03eedd08048292ea4930875d5b587333fd78f6c", "simhash": "1:176a56e67d4aad6a", "word_count": 2992 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "SUTIN, J., specially concurring." ], "parties": [ "Dennis MARTINEZ, Plaintiff-Appellant, v. EARTH RESOURCES COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHERNANDEZ, Judge.\nThis is the second time that this Workmen\u2019s Compensation case has been before us, Martinez v. Earth Resources Co., 87 N.M. 278, 532 P.2d 207 (Ct.App.1975). However, it is not necessary to refer to the prior appeal with the exception of the following part of the judgment which was affirmed:\n\u201cThat as a natural and direct result of said accident proximately caused within the scope of plaintiffs employment said plaintiff has been totally disabled since the date of the accident on December 25, 1972 and will be totally disabled for a period of six months from the date of trial January 4, 1974 which will be July 4, 1974 at which time the Plaintiff may bring the matter before the Court for a determination of his disability status as provided by law.\u201d [Emphasis ours.]\nOn April 26, 1976, plaintiff filed a petition requesting a hearing to determine his disability status and alleging that he was disabled. In support of his petition he attached a letter dated March 9, 1976, by the doctor who had treated him at the time of the original injury indicating a continuing disability and a \u201cdistant\u201d possibility of surgery. The defendants filed a motion to dismiss for lack of jurisdiction, upon what grounds we do not know, since a copy of the motion does not appear in the record. However, at the hearing on the motion defendants argued that plaintiff\u2019s motion was barred by Section 59-10-13.6(A), N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1, 1974) which provides in part:\n\u201cIf an employer or his insurer fails or refuses to pay a workman any installment of compensation to which the workman is entitled * * *, after notice has been given * * *, it is the duty of the workman * * * to file a claim therefor * * * not later than one [1] year. * * * [I]f the workman fails to file a claim * * * within the time required * * *, his right to the recovery of compensation and the bringing of any legal proceeding for the recovery of compensation are forever barred.\u201d\nWe would note parenthetically that defendants\u2019 contention that the statute of limitations is jurisdictional is erroneous. The statute of limitations is a privilege which defendant may interpose or which he may waive or be estopped by his conduct from asserting. Greve v. Gibraltar Enterprises, 85 F.Supp. 410 (D. N.M. 1949). \u201cJurisdiction of the subject matter cannot be conferred by consent of the parties, much less waived by them.\u201d State ex rel. Over-ton v. New Mexico State Tax Com\u2019n., 81 N.M. 28, 462 P.2d 613 (1970); Martinez v. Research Park, 75 N.M. 672, 410 P.2d 200 (1965).\nThe trial court in granting defendant\u2019s motion stated the following as its reasons for doing so:\n\u201cIt was the intention of the Court in going back and interpreting Paragraph 6 of the Final Judgment that was entered in this case, the Court found that the petitioner was disabled for a period of six months beyond the date of the trial, and gave to the Petitioner an opportunity to come before the Court at the expiration of that period of time in the event that he felt, based upon medical testimony, that that time should be expanded.\n\u201cThe Court feels that the authority in this case is governed by Section 25 of the Workmen\u2019s Compensation law and not the general statute of limitations within the statute itself. I believe that the petitioner has exceeded the time that was given to him for purposes of making that determination, and it was not the Court\u2019s intent to give to the Petitioner an unlimited time in which to make the determination that he did need an expansion or enlargement of the time.\u201d [Emphasis ours.]\nThe plaintiff alleges four points of error. However, we need consider only two of the questions raised in order to resolve this appeal: Whether plaintiff\u2019s petition was barred by \u00a7 59-10-13.6(A) supra; and whether the trial court had the authority to place a time limitation on plaintiff\u2019s right to petition to re-open the original judgment to determine if his disability had increased or become aggravated.\nSection 59-10-25(A), N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1, 1974) provides in pertinent part:\n\u201cThe district court in which any workman has been awarded compensation . may, upon the application of the . workman . . ., fix a time and place for hearing upon the issue of claimant\u2019s recovery and if it shall appear upon such hearing . . that the disability of the workman has become more aggravated or has increased without the fault of the workman, the court shall order an increase in the amount of compensation allowable as the facts may warrant. Hearings may not be held more frequently than at six-month intervals . . . .\u201d\nAs can be seen, there is no time limit in the section within which applications specified must be filed. Our Supreme Court in Norvell v. Barnsdall Oil Co., 41 N.M. 421, 70 P.2d 150 (1937), which involved an application for decrease or termination, answered the question of whether there was unlimited time in which to file applications and whether \u00a7 59-10-13.6(A), supra, fixing the time limit within which to file the original claim for compensation, applied to applications to reopen:\n\u201c[An] application to decrease or terminate compensation under a prior award not being an original proceeding is not affected by the provision of the act fixing the time within which original proceedings for compensation must be instituted and is not affected by the Code provision applicable to modification of judgments generally, and in the absence of controlling statute or rule may be presented at any time within the period for which compensation is allowable . . .\u201d\nThe maximum duration of benefits at the time of plaintiff\u2019s accident on December 25, 1972, was 500 weeks. Therefore, his application filed on April 26, 1976, was timely.\nThe trial court was obviously under the impression that \u00a7 59-10-25, supra, gave it the authority to place a time limitation on when plaintiff could file an application to reopen. The trial court was mistaken; there is no such provision in this section or in the Workmen\u2019s Compensation Act. Did the trial court, as a court of general jurisdiction, nonetheless have inherent authority to impose such a limitation? The answer is no. \u201c[T]he Workmen\u2019s Compensation Act of New Mexico is sui generis and creates rights, remedies and procedures which are exclusive.\u201d Security Insurance Co. of Hartford v. Chapman, 88 N.M. 292, 540 P.2d 222 (1975). The legislature having granted the substantive right to reopen the original judgment and having established the procedure for enforcement thereof, the courts cannot nullify or change such a right or the procedure. \u201cWe are not authorized judicially to eliminate rights conferred by the legislature.\u201d Gonzales v. Sharp & Fellows Contracting Co., 51 N.M. 121, 179 P.2d 762 (1947).\nFor the guidance of the trial court upon the rehearing of this matter we think it is necessary to comment further on jurisdiction. Section 59-10-13.7, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1, 1974) provides in part that: \u201cClaims to recover compensation benefits shall be filed in district court and shall be in the nature of a civil complaint wherein the workman shall be designated \u2018plaintiff\u2019 and his employer and the insurer shall be designated \u2018defendants.\u2019 \u201d This section satisfies the question of the trial court\u2019s jurisdiction over the subject matter. The defendants subjected themselves to the jurisdiction of the trial court when they entered a general appearance in the original action.\nWe reverse and remand for further proceedings not inconsistent with this opinion. Should it be determined that plaintiffs disability continued beyond July 4, 1974 and should plaintiff be awarded further compensation beyond what he has already received, then in awarding attorney\u2019s fees the trial court should take into consideration the services of plaintiff\u2019s attorneys in this appeal.\nAppellant is to be allowed $1,250.00 for the services of his attorneys.\nIT IS SO ORDERED.\nLOPEZ, J., concurs.\nSUTIN, J., specially concurring.", "type": "majority", "author": "HERNANDEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI concur in the result and believe that additional relief should be granted plaintiff.\nOfttimes, when a trial judge decides a , case, he makes law \u2014 sometimes good, sometimes bad. A new case, being what it is, often leads a court to legislate, whether it wants to or not. This is especially true when lawyers obfuscate the proceedings and the issues and the trial judge exercises his discretion in arriving at a decision.\nA. The Record On Appeal\nThe record shows the following dates and events:\n(1)On March 19, 1974, \u201cFinal Judgment\u201d was entered in which the trial court found plaintiff totally disabled and awarded compensation therefor; that plaintiff would be totally disabled for a period of six months ending July 4, 1974, and ordered payments to be made by defendants until that date, and then arbitrarily ordered, \u201cat which time the plaintiff may bring the matter before the Court for a determination of his disability status as provided by law.\u201d [Emphasis added.]\nSection 59-10-16(A) provides for inclusion in a judgment \u201can order upon the defendants for the payment to the workman, at regular intervals during the continuance of his disability \u201d. [Emphasis added.] There is no provision by statute that the trial court can summarily fix a time for plaintiff to bring the matter before the court. Section 59-10-25(A) provides that upon application by a workman, the district court may fix a time and place for hearing, \u201cAnd if it shall appear upon such hearing that the disability of the workman has become more aggravated or has increased without the fault of the workman, the court shall order an increase in the amount of compensation allowable as the facts may warrant.\u201d [Emphasis added.]\n(2) On April 4, 1975, after the judgment was affirmed and a mandate filed, the trial court entered judgment on the mandate, and at the same time, plaintiff executed and filed a satisfaction of judgment which showed a full and complete satisfaction of the \u201cFinal Judgment\u201d entered on March 19, 1974.\n(3) On April 26, 1976, more than one year after satisfaction of the judgment, plaintiff moved \u201cthe Court that the Defendant be ordered to reinstate his workmen\u2019s compensation as of July 4, 1974\u201d. [Emphasis added.] The issue to be decided was whether plaintiff\u2019s total disability continued after July 4, 1974.\n(4) At some unspecified time, defendants\u2019 attorney states he filed a motion \u201cto dismiss for lack of jurisdiction.\u201d The attorneys in these proceedings were not concerned with the fact that the motion to dismiss, if written, does not appear in the transcript of the record, and if oral, the circumstances under which it was made, is not shown. Neither do we know upon what basis the motion was made. This lack of concern by lawyers is a return to adolescence in the practice of the law. It may not be of significance to some appellate judges, but it is to me. This reference to adolescence not only applies in this case but is a common occurrence, and it does not arouse my sympathy.\n(5) On July 30, 1976, argument was held on defendants\u2019 motion to dismiss for lack of jurisdiction. Jurisdiction is the power to hear and decide. Defendants\u2019 argument was based upon the application of \u00a7 59 \u2014 10-13.6, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1). This statute bars a claim for workmen\u2019s compensation if the claim is not filed within one year \u201cafter the failure or refusal to pay compensation.\u201d\n(6) On August 26,1976, the court entered its final order from which this appeal was taken. Defendant did not raise any issue of waiver in the trial court. Nevertheless, the trial court found \u201cthat plaintiff by his delay in filing such Petition has waived any rights to bring this matter before the court and the court further finding that the Motion is well taken; \u201d the court ordered plaintiff\u2019s petition dismissed with prejudice. [Emphasis added.] It desires clarification by this Court on its decision and judgment.\nTwo issues are presented on this appeal: (1) Did the trial court lack jurisdiction to hear and decide this matter, and (2) did plaintiff waive his rights to bring this matter before the court?\nB. The trial court did not lack jurisdiction.\nWe are confronted with one serious problem. Does a trial court have the power to terminate the end of total disability in a \u201cFinal Judgment\u201d and grant the plaintiff a discretionary right for six months in which to determine his disability status \u201cas provided by law\u201d? We say \u201cNo.\u201d This is a matter of first impression.\nWhen a complaint and answer are filed in a workmen\u2019s compensation case, the trial court determines whether a workman is disabled. If the workman is disabled at the time of trial, the court must enter judgment against defendants \u201cfor the amount then due, and shall also contain an order upon the defendants for the payment to the workman, at regular intervals during the continuance of his disability, the further amounts he is entitled to receive.\u201d Section 59-10-16(A). This kind of judgment is mandatory.\nThis is not a \u201cFinal Judgment\u201d. We all know that \u201c[t]here is no longer any question in this jurisdiction but that a judgment such as here involved is not final until the full statutory period of 550 weeks has elapsed.\u201d Churchill v. City of Albuquerque, 66 N.M. 325, 327, 347 P.2d 752, 753 (1959). During this period of time, the trial court has continuing jurisdiction to determine the disability status of the workman. Segura v. Jack Adams Contractor, 64 N.M. 413, 329 P.2d 432 (1958); LaRue v. Johnson, 47 N.M. 260, 141 P.2d 321 (1943). This determination is made when the employer or the workman calls this matter of disability to the attention of the court. Section 59-10-25(A). The plaintiff did call this matter to the attention of the court, and the trial court had jurisdiction to determine plaintiff\u2019s disability subsequent to July 4, 1974. The defendants\u2019 motion directed to lack of jurisdiction did not seek a termination of plaintiff\u2019s disability. This issue was not before the court. The trial court proceeded contrary to the explicit provisions of the Workmen\u2019s Compensation Act and the court\u2019s provision for termination of total disability is null and void.\nDefendants contend that the one-year statute of limitations contained in \u00a7 59-10-13.6 is applicable, warranting dismissal of, plaintiff\u2019s petition. They say:\nClaimant\u2019s delay of over a year between the time of final Satisfaction of Judgment (April 4, 1975) and the filing of the petition for reinstatement of benefits (April 26, 1976) was in excess of this one year period, thereby mandating dismissal of the petition.\nIt is a common occurrence for trial courts and attorneys to pole vault to dismissal without a pole, or to dance around the law without a partner to sustain a \u201clack of jurisdiction.\u201d Those are two of the reasons we are flooded with appeals. Section 59-10-13.6 applies to the initial claim for compensation. It does not apply to reopening procedures.\nDefendants argue that the same considerations which led the legislature to enact this statute are as applicable to reopening procedures as the filing of the initial claims, i. e., to allow the employer to protect himself by prompt investigation and treatment of the injury, to prevent fraud, and to protect litigants from stale claims. This protection is given defendants by \u00a7 59-10-25(A).\nThe trial court did not lack jurisdiction. The trial court erred in sustaining defendants\u2019 motion to dismiss.\nC. Plaintiff did not waive his rights.\nThe trial court found that plaintiff waived his rights to bring this matter to the attention of the trial court within six months as provided in the \u201cFinal Judgment\u201d. Inasmuch as this portion of the \u201cFinal Judgment\u201d is null and void, plaintiff did not waive his rights. One purpose of the Workmen\u2019s Compensation Act is to protect the workman after judgment is entered during the time that he is disabled. The employer is liable until such time as the workman, for some consideration, releases the employer of all liability, or the parties enter into a stipulation for a lumpsum judgment that is fully paid and satisfied. Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964). Neither event occurred.\nThe satisfaction of judgment executed by the plaintiff in \u201cfull and complete satisfaction of the final Judgment entered in this cause on March 19, 1974,\u201d means exactly what it says. He was paid compensation and attorney fees for total disability through July 4, 1974. He did not satisfy all future compensation to which he was entitled thereafter.\nPlaintiff did not waive his right to bring this matter before the court.\nD. Plaintiff is entitled to payment of compensation until disability is terminated.\nPlaintiff was entitled to compensation for disability after the \u201cFinal Judgment\u201d was entered on March 19, 1974. These payments must be made at regular intervals during the continuance of his disability, \u201csubject to its termination should the court subsequently adjudge that the disability had ceased.\u201d LaRue, supra, 47 N.M. at 268, 141 P.2d at 326. Plaintiff sought to \u201creinstate\u201d the disability payments after July 4, 1974. The defendants did not seek to diminish or terminate plaintiff\u2019s disability. Until they do, plaintiff is entitled to a continuation of total disability payments from and after July 4, 1974. Plaintiff\u2019s motion should be granted.\nThis cause should be reversed. In addition thereto, I believe that plaintiff\u2019s motion that the court order defendants to make the payments from and after July 4, 1974, should be sustained and plaintiff should be paid compensation until the defendants desire to contest plaintiff\u2019s disability. Plaintiff is entitled to attorney fees on this appeal in the sum of $2,000.00.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Matias L. Chacon, Espa\u00f1ola, Bruce P. Moore, Duhigg & Cronin, Albuquerque, for plaintiff-appellant.", "William K. Stratvert and Robert H. Clark, Keleher & McLeod, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "566 P.2d 838\nDennis MARTINEZ, Plaintiff-Appellant, v. EARTH RESOURCES COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellees.\nNo. 2815.\nCourt of Appeals of New Mexico.\nJune 20, 1977.\nMatias L. Chacon, Espa\u00f1ola, Bruce P. Moore, Duhigg & Cronin, Albuquerque, for plaintiff-appellant.\nWilliam K. Stratvert and Robert H. Clark, Keleher & McLeod, Albuquerque, for defendants-appellees." }, "file_name": "0590-01", "first_page_order": 626, "last_page_order": 631 }