{
  "id": 1571166,
  "name": "Leonires PACHECO, Plaintiff-Appellant, v. ALAMO SHEET METAL WORKS, INC. and United States Fidelity and Guaranty Company, Defendants-Appellees",
  "name_abbreviation": "Pacheco v. Alamo Sheet Metal Works, Inc.",
  "decision_date": "1978-06-06",
  "docket_number": "No. 3358",
  "first_page": "730",
  "last_page": "732",
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  "last_updated": "2023-07-14T15:07:42.064818+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "Leonires PACHECO, Plaintiff-Appellant, v. ALAMO SHEET METAL WORKS, INC. and United States Fidelity and Guaranty Company, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nPlaintiff\u2019s appeal from his workmen\u2019s compensation award raises issues as to (1) temporary total disability, and (2) attorney fees.\nTemporary Total Disability\nDefendants\u2019 answer admitted that plaintiff suffered an accident arising out of and in the scope of his employment, and that plaintiff suffered temporary injuries. The answer denied that plaintiff had suffered a permanent injury. There is no dispute concerning the amount of the compensation benefits or plaintiff\u2019s entitlement to medical and surgical expenses.\nThe evidence, uncontradicted, was that at the time of trial, plaintiff was totally disabled within the meaning of \u00a7 59-10-12.18, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1). The trial court\u2019s findings, in effect, found total disability.\nThe trial court also found, however:\nThat Plaintiff has not achieved his maximum recovery at the present time and as a reasonable medical probability should continue to improve until approximately two years from the date of the accident.\nThe trial court concluded:\nPlaintiff has been temporarily totally disabled since the date of the accident and is entitled to weekly compensation benefits of $97.96 per week from April 14,1976, to the entry of judgment and continuing thereafter so long as the temporary disability continues.\nThe judgment reflects the above-quoted conclusion. In the judgment, the trial court retained jurisdiction over the cause.\nPlaintiff contends the evidence does not support the conclusion of a temporary total disability. We disagree. The above-quoted finding and the above-quoted conclusion which is based on that finding, has evidentiary support in the testimony of the medical experts.\nPlaintiff asserts that, having in effect found a total disability at the time of trial, the trial court was required to enter a judgment for a total disability that was permanent. Plaintiff argues that a temporary total disability is not authorized by the Workmen\u2019s Compensation Act. We disagree.\nSection 59-10-12.18, supra, defines total disability, but does not refer to payment of compensation benefits. Section 59-10-18.2, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, Supp. 1975) sets forth the payments to be made for total disability \u201cduring the period of that disability\u201d up to a maximum period of 600 weeks. The language of \u00a7 59-10-18.2, supra, contemplates that total disability may be temporary. The view, that total disability may be temporary, has been recognized in various decisions. See Martinez v. Fluor Utah, Inc., 90 N.M. 782, 568 P.2d 618 (Ct.App.1977); Martinez v. Earth Resources Co., 90 N.M. 590, 566 P.2d 838 (Ct.App.1977); Goolsby v. Pucci Distributing Company, 80 N.M. 59, 451 P.2d 308 (Ct.App.1969); compare Mares v. City of Clovis, 79 N.M. 759, 449 P.2d 667 (Ct.App.1968).\nPlaintiff asserts that the judgment violates \u00a7 59-10-16(A), N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1) and that the judgment should have provided for compensation for 600 weeks from the date of the accident. Again, we disagree.\nSection 59-10-16(A), supra, states the judgment shall be \u201cfor the amount then due, and shall also contain an order . for the payment to the workman . [of] the further amounts he is entitled to receive.\u201d The judgment complied with the statute. The judgment provided for the payment' of weekly benefits of a specified amount from the date of the accident to entry of the judgment. We do not understand plaintiff to claim the judgment is defective because it fails to set forth a total sum due, or because it fails to state the number of weeks for which compensation was due, a matter ascertained by counting the calendar weeks. Nor do we understand plaintiff to complain that he is to be paid the specified weekly sum so long as the temporary total disability continues. We understand plaintiff\u2019s complaint to be that the judgment refers to a temporary total disability rather than a disability for the maximum 600 weeks during which compensation is payable. Since total disability payments are to be made \u201cduring the period of that disability\u201d, \u00a7 59-10-18.2, supra, the judgment states the \u201cfurther amounts he is entitled to receive.\u201d Section 59-10-16(A), supra.\nSince plaintiff is receiving temporary total disability payments until some change occurs, what is his complaint? Plaintiff asserts defendants can \u201cmaintain the Plaintiff on temporary disability for the entire six hundred (600) weeks which would prohibit the Plaintiff of reasonable attorney fees and deprive him of the vocational rehabilitation services provided by\u201d \u00a7 59-10-19.-2, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1). This argument is premature. Plaintiff has been awarded an attorney fee for services in securing the award of temporary total disability. Plaintiff, so far, has not sought vocational rehabilitation benefits. The trial court\u2019s finding and its retention of jurisdiction, contemplate further proceedings two years after the date of the accident. Claims for attorney fees and rehabilitation benefits will no doubt be made in the contemplated further proceedings.\nAttorney Fees\nThe trial court awarded plaintiff an attorney fee of $500 for services in the trial court resulting in the award of temporary total disability. Plaintiff asserts the award is arbitrary.\nThere is nothing in the appellate record concerning the provisions of \u00a7 59-10-23(D), N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1). See Keyser v. Research Cottrell Company, 84 N.M. 173, 500 P.2d 997 (Ct.App.1972). Plaintiff requested the trial court to find that $5,000 should be awarded as attorney fees \u201cin view of the time and services rendered by Plaintiff\u2019s attorney\u201d. There is nothing showing the time and services rendered, it is not reflected in the transcripts and briefs filed in this case. See Martinez v. Fluor Utah, Inc., supra. Plaintiff seems to be arguing that he is entitled to a minimum fee of ten percent of the amount due at the time of the judgment. This is incorrect. The amount of the attorney fee award is discretionary with the trial court and is reviewable only for an abuse of discretion. Escobedo v. Agriculture Products Co., Inc., 86 N.M. 466, 525 P.2d 393 (Ct.App.1974). There is nothing showing an abuse of discretion.\nThe judgment of the trial court is affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Albert J. Rivera, Alamogordo, for plaintiff-appellant.",
      "Charles W. Durrett, Durrett, Conway, O\u2019Reilly & Jordon, P. C., Alamogordo, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "580 P.2d 498\nLeonires PACHECO, Plaintiff-Appellant, v. ALAMO SHEET METAL WORKS, INC. and United States Fidelity and Guaranty Company, Defendants-Appellees.\nNo. 3358.\nCourt of Appeals of New Mexico.\nJune 6, 1978.\nAlbert J. Rivera, Alamogordo, for plaintiff-appellant.\nCharles W. Durrett, Durrett, Conway, O\u2019Reilly & Jordon, P. C., Alamogordo, for defendants-appellees."
  },
  "file_name": "0730-01",
  "first_page_order": 766,
  "last_page_order": 768
}