{ "id": 1568721, "name": "Ramon R. CASIAS, Plaintiff-Appellee, v. The ZIA COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellants", "name_abbreviation": "Casias v. Zia Co.", "decision_date": "1979-05-17", "docket_number": "No. 3842", "first_page": "78", "last_page": "84", "citations": [ { "type": "official", "cite": "93 N.M. 78" }, { "type": "parallel", "cite": "596 P.2d 521" } ], "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": "77 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806383 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0185-01" ] }, { "cite": "92 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557088 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0287-01" ] }, { "cite": "92 N.M. 763", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557092 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0763-01" ] }, { "cite": "91 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571162 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0460-01" ] }, { "cite": "92 N.M. 23", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557122 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0023-01" ] }, { "cite": "86 N.M. 168", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823534 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0168-01" ] }, { "cite": "82 N.M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327234 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0424-01" ] }, { "cite": "70 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853358 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0034-01" ] }, { "cite": "67 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715469 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0156-01" ] }, { "cite": "376 P.2d 176", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5349944 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0113-02" ] }, { "cite": "71 N.M. 113", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5349944, 5347657 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0113-02", "/nm/71/0113-01" ] }, { "cite": "83 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333759 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/83/0400-01" ] }, { "cite": "83 N.M. 622", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334788 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0622-01" ] }, { "cite": "83 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5342460 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0073-01" ] }, { "cite": "83 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340190 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0038-01" ] }, { "cite": "90 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872687 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0477-01" ] }, { "cite": "89 N.M. 213", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863105 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0213-01" ] }, { "cite": "81 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363696 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0120-01" ] }, { "cite": "318 A.2d 71", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8047165 ], "opinion_index": 0, "case_paths": [ "/a2d/318/0071-01" ] }, { "cite": "89 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861840 ], "weight": 6, "pin_cites": [ { "page": "686" }, { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0683-01" ] }, { "cite": "90 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869120 ], "weight": 6, "pin_cites": [ { "page": "224" }, { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0220-01" ] }, { "cite": "92 N.M. 635", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557277 ], "weight": 4, "year": 1978, "pin_cites": [ { "parenthetical": "rev'd on issue of attorney fees only" }, { "parenthetical": "rev'd on issue of attorney fees only" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0635-01" ] }, { "cite": "92 N.M. 804", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557144 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0804-01" ] }, { "cite": "89 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861840 ], "weight": 3, "pin_cites": [ { "page": "842" } ], "opinion_index": 2, "case_paths": [ "/nm/89/0683-01" ] }, { "cite": "90 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869120 ], "weight": 2, "pin_cites": [ { "page": "224" } ], "opinion_index": 2, "case_paths": [ "/nm/90/0220-01" ] }, { "cite": "92 N.M. 804", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557144 ], "weight": 2, "year": 1979, "opinion_index": 2, "case_paths": [ "/nm/92/0804-01" ] } ], "analysis": { "cardinality": 981, "char_count": 23168, "ocr_confidence": 0.791, "pagerank": { "raw": 3.036913496069838e-07, "percentile": 0.8549992682971093 }, "sha256": "2d20ccfb5d2cdcc4170aaab628d9116764ba25dd197bd4caeb544aab364a8c2a", "simhash": "1:bdc4e9591104e03e", "word_count": 3827 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concurring in result." ], "parties": [ "Ramon R. CASIAS, Plaintiff-Appellee, v. The ZIA COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWALTERS, Judge.\nAppellants urge' that plaintiff-appellee Casias was awarded total disability benefits at an incorrect rate because the accident occurred on October 7, 1976 and he became totally and permanently disabled on August 28, 1977, during which time the percentage of the average weekly wage in the state (see \u00a7 52-l-41(A), N.M.S.A.1978), upon which maximum compensation is based, increased from 78% to 89%. Appellants contend the lower rate should have been applied against the average weekly wage on October 7, 1976 because \u00a7 52-1-20, N.M.S. A.1978, provides for determination of the weekly wage \u201cat the time of the accident.\u201d\nIt appears, from an analysis of the two sections above referred to, that the terms \u201ctime of the accident\u201d (\u00a7\u00a7 52-1-20 A, -20 B(l), -(2), -(3), and -(4); \u201ctime of injury\u201d (\u00a7 52-1-20 B); \u201cdate of disability\u201d (\u00a7 52-1-40); and \u201cdate of accidental injury\u201d (\u00a7 52-1-40), were used by the Legislature in the Workmen\u2019s Compensation Act with some lack of selectiveness. It, of course, is more frequently the case in workmen\u2019s compensation suits that the date of the accident, the injury, and the disability, all coincide. But when there is a lapse of time between any of those incidents, appeals of the present nature have resulted and they have become the fiber from which the decisions of LaMont v. New Mexico Military Inst., 92 N.M. 804, 595 P.2d 774 (Ct.App., 1979); Herndon v. Albuquerque Pub. Schools, 92 N.M. 635, 593 P.2d 470 (1978) (rev\u2019d on issue of attorney fees only)); Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493 (Ct.App.1977); and De La Torre v. Kennecott Copper Corp., 89 N.M. 683, 556 P.2d 839 (Ct.App.1976), were fashioned. Each of those cases either interpreted the limitation section of the Act [now \u00a7 52-1-31, N.M.S.A.1978] to commence running when \u201cthe disability is discovered rather than from the accidental occurrence,\u201d De La Torre, supra at 686, 556 P.2d at 842, or that rate of compensation is \u201cbased upon the applicable law on the date of disability\u201d rather than at the time of the accident, Moorhead, supra, 90 N.M. at 224, 561 P.2d at 497, because if the claimant suffers an accident in the course of his employment which does not disable but ultimately leads to a later \u201cmalfunction of the body\u201d resulting in disability, the continuing pain and degenerating ability to function constitute the operative \u201caccident\u201d which brings about the compensable \u201caccidental injury\u201d on the date of disability, Moorhead; Herndon, supra.\nJudge Sutin, in the Herndon opinion cited above, discussing the issue of \u201caccidental injury\u201d within the factual context of plaintiff\u2019s fall on June 4, 1975 and her inability to continue work on September 2, 1975, wrote:\nDefendants argue that no decision in New Mexico \u201cholds that any condition which develops pain but which does not result in malfunction of the body is \u2018injury caused by accident,\u2019 as required by Section 59-10-6 * * *\nIn support of this position, defendants rely strongly on Towle v. Department of Transportation, State Highway, 318 A.2d 71 (Me.1974) where the court held that a claimant, a street sweeping operator, who suffered a postural strain over a period of time had not suffered a \u201cpersonal injury by accident arising out of and in the course of his employment.\u201d We note, however, that the court also stated that if the stress of labor aggravates or accelerates the development of a preexisting infirmity causing an internal breakdown of that part of the structure, a personal injury by accident does occur. This rule in Towle is the rule in New Mexico and applicable to the facts in the instant case.\n* * * * * *\nAs we read Lyon [Lyon v. Catron County Commissioners, 81 N.M. 120, 464 P.2d 410] today, a workman has suffered an accidental injury if he (1) experiences preexisting back pain from a previous accident incurred during his employment, (2) continues in his normal employment under pain, (3) and subsequently suffers a ruptured disc evidenced by a severe nerve root pain, (4) which ruptured disc is caused or accelerated while working.\nIn the instant case, the accident was the strain on plaintiff\u2019s back initiated by the fall on June 4, 1975; the injury was the severe pain that disabled her. If this strain caused or accelerated a \u201ccollapse\u201d from back weakness, it was a malfunction of the body and plaintiff suffered an accidental injury; if it did not, it was not accidental. Whether the injury was accidental due to the strain over a three month period of time was an issue of fact decided in plaintiff\u2019s favor.\nIt is necessary to reconcile these decisions relating to statute of limitation, date of injury, and rate of compensation issues, because at first blush one might believe that entirely different propositions were determined and should not be confused. We believe the decided cases have refined the meaning of entitlement to and the amount of compensation to some very basic principles, the Court always having in mind that the Act itself expresses the intention and policy of this State that employees who suffer disablement as a result of injuries causally connected to their work, shall not become dependent upon the welfare programs of the State, Codling v. Aztec Well Servicing Co., 89 N.M. 213, 549 P.2d 628 (Ct.App.1976), but shall receive some portion of the wages they would have earned, had it not been for the intervening disability, LaMont, supra; and that the fundamental reason for its adoption was to protect the workman, Clark v. Electronic City, 90 N.M. 477, 565 P.2d 348 (Ct.App.1977). Those principles may be summarized as follows:\n(1) The statute of limitation does not begin to run when a non-disabling accident occurs, but rather when the workman knows or should know that he has sustained a compensable injury as a result of the accident. Duran v. New Jersey Zinc. Co., 83 N.M. 38, 487 P.2d 1343 (1971); De La Torre, supra.\n(2) Compensation is not payable until and unless a v/ork-related accident produces an injury which becomes disabling. Willcox v. United Nuclear Homestake Sapin Co., 83 N.M. 73, 488 P.2d 123 (Ct.App.1971); Pacheco v. Springer Corp., 83 N.M. 622, 495 P.2d 800 (Ct.App.1972); Gomez v. Hausman Corp., 83 N.M. 400, 492 P.2d 1263 (Ct.App.1971); LaMont, Herndon, supra.\n(3) The disabling event may occur many months or years after the work-related accident, LaMont, Gomez, supra, and then become compensable; or it may be the product of a new \u201caccident\u201d resulting from the bodily malfunction ultimately induced by the original injury, Herndon; Moorhead; De La Torre, supra.\n(4) The rate of compensation, being intended to bear some relationship to the workman\u2019s wage earning capacity, Kendrick v. Gackle Drilling Co., 71 N.M. 113, 376 P.2d 176 (1962), is measured as of the time that wage-earning capacity is affected, i. e., the date of disability. LaMont; Moorhead, supra.\nThe logic which dictates that the reasoning expressed in the decided cases be considered together, with respect to limitations and rate of compensation, is demonstrated by pointing out that under \u00a7 52-1-29 the employee must, with one exception, give notice \u201cof the accident and of the injury within thirty days after their occurrence,\u201d but \u201cat all events not later than sixty days after the occurrence of the accident.\u201d These requirements have been interpreted to equate \u201caccident\u201d with \u201cinjury\u201d in those cases where a latent injury is suffered, simply because an eligible workman shall not be required to report every accidental incident, whether disabling or not, at the peril of losing benefits for failure to do so should he at some later time become disabled from a seemingly insignificant incident. The court\u2019s discussion on this matter in Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680 (1960), is illustrative of the policy considerations for such an interpretation. The construction there adopted has long been followed in this jurisdiction, e. g., Langley v. Navajo Freight Lines, Inc., 70 N.M. 34, 369 P.2d 774 (1962); Brown v. Safeway Stores, Inc., 82 N.M. 424, 483 P.2d 305 (Ct.App.1970). It was stated flatly, in Anaya v. Big Three Industries, Inc., 86 N.M. 168, 521 P.2d 130 (Ct.App.1974), that \u201c[cjompensation is paid only when there is a disability.\u201d It is clear from these cases that \u201cdate of accident\u201d and \u201cdate of injury\u201d have come to mean \u201cdate when compensable injury manifests itself.\u201d\nThus, to apply the same construction to all of the provisions of \u00a7 52-1-20 is not unique or startling. Subsection A defines \u201cwages\u201d as the money rate at which services are recompensable under the contract of hire \u201cat the time of the accident.\u201d Subsection B requires computation of benefits upon the monthly, weekly, daily or hourly remuneration which the workman was earning \u201cat the time of the injury.\u201d The further subsections under B all refer to \u201ctime of the accident.\u201d It is apparent that the Legislature used the two terms interchangeably and indiscriminately. We, therefore, apply the meaning \u201cdate when the compensable injury manifests itself\u201d or \u201cdate when the workman knows or should know he has suffered a compensable injury\u201d to all of the portions of the Workmen\u2019s Compensation Act where the terms \u201ctime of accident,\u201d \u201ctime of injury,\u201d \u201cdate of disability,\u201d \u201cdate of accidental injury,\u201d or words of similar import, are used, recognizing that in doing so we acknowledge the reality of possible latent injuries and that payment of compensation is a partial substitute for wages formerly earned by the workman at the time when he can no longer earn the same wage. What a travesty it would be a award a percentage of a lower wage earned by the injured employee if he had received wage increases between the date of the accident and the date he was no longer able to work. In times of inflation, such as the present, he might well be relegated to the State\u2019s welfare system to meet the ever-increasing monetary demands for maintaining a standard of decency, dignity and self-respect (1 Larson\u2019s Compensation Law 6, \u00a7 2.20), if his increased wage-earning ability between accident and disablement were not recognized. We do not believe the Legislature so intended, and its enactments thus are read to give the most beneficial interpretation to them favorable to the workman.\nThe formula, then, to determine the amount of compensation to be paid, is extracted from the provisions of \u00a7\u00a7 52-1-20 and 52-1-41 and -42. Section 52-1-20 provides the applicable quotient or multiple by which a workman\u2019s monthly, daily or hourly wage shall be divided or multiplied to obtain his average weekly wage; \u00a7 52-1-41 establishes the maximum and minimum amounts that may be paid for total disability, regardless of the workman\u2019s average weekly wage, and requires a graduated increase until July 1, 1978 when one hundred percent of the average weekly wage in the State became the maximum allowed; and \u00a7 52-1-42 makes the amount of total disability, multiplied by the percentage of disability, the amount to be recovered for the court-determined degree of partial disability. A hypothetical illustration may be helpful:\n1. W earned $1,260.00 a month at the time he suffered a total and permanent compensable injury and disability, on August 1, 1977. Section 52-1-20 B(l) requires that the monthly wage be multiplied by 12 and then divided by 52.\n$1,260 x 12 = $15,120\n$15,120 = $290.769 ($290.77) = W\u2019s average 52 weekly wage.\n2. Assume that the average weekly wage in the state on July 1, 1977 was $210.50. Section 52-1-41 provides that, for total disability, the workman shall receive a maximum of 89% of the average weekly wage, or:\n$210.50 x 89% = $187.345 ($187.35)\n3. Section 52-1-41 further provides that a totally injured workman shall receive, during the period of his disability, two-thirds of his average weekly wage.\n| x $290.77 = $193.844\n4. Since two-thirds of W\u2019s average weekly wage is greater than 89% of the hypothetical average weekly wage in the state, W may not be awarded more than $187.35 from August 1, 1977 through June 30, 1978. However, on July 1, 1978, according to the provisions of \u00a7 52-1-41 A, he shall become entitled to 100% of the average weekly wage in the state, or $210.50, since that amount is still less than W\u2019s actual average weekly wage. And if the July 1, 1978 average weekly wage in the state is more that $2.00 greater that $210.50 (the average weekly wage on July 1, 1977), W shall then receive 100% of the greater amount (so long as it is not more than $290.77) from July 1, 1978 forward. \u00a7 52-1-42 D, N.M.S.A. 1978.\nThus, a workman\u2019s disability compensation award may increase over a 600-week period from a maximum of $90 per week in July 1975, through 100% of the average weekly wage in the state on and after July 1, 1978, but it may never exceed two-thirds of the actual average weekly amount the workman was earning at the time his disability commenced. No doubt the Legislature, cognizant of the Report of the National Commission of State Workmen\u2019s Compensation Laws published in July 1972 (see \u201cInsurance Study Committee Report to the Thirty-second Legislature\u201d), sought to alleviate the impossibility of stretching a rigidly fixed income to the permanently disabled workman during those years following disability when he would be faced with an erosion in the value of his benefits, and enacted the escalating increase of benefits in its 1975 amendment to \u00a7 52-1-42 [then \u00a7 59-10-18.3, N.M.S.A.1953],\nWith respect to the instant case, the parties stipulated plaintiff was earning $275.40 per week both at the time of the accident in 1976 and when he became unable to work in 1977. Two-thirds of $275.40 is $182.60. They also stipulated that if compensation were to be determined as of the 1976 date, the rate to be paid would be $114.61; if the 1977 date applied, $142.59. Those figures accurately represent the maximum entitlements as computed in accordance with \u00a7 52-l-41(B), N.M.S.A.1978.\nApplying, then, the rule that the date of a workman\u2019s accident, injury, and benefits are to be determined by and as of the \u201cdate when the injury manifests itself\u201d or \u201cwhen the workman knows or should know he has suffered a compensable injury,\u201d we are satisfied that the trial court properly awarded the higher rate of compensation to Mr. Casias. Moreover, since the average weekly wage in the state increased by more than $2.00 on July 1, 1978, to $172.46, then Mr. Casias became entitled to the entire 100% of that average weekly wage in the state. He is so limited because he is only entitled to two-thirds of his own average weekly wage ($182.60) or the maximum percentage of the average weekly wage in the state ($172.46), whichever is less.\nGilliland v. Hanging Tree, 92 N.M. 23, 582 P.2d 400 (Ct.App.1978), and Ideal Basic Industries, Inc., v. Evans, 91 N.M. 460, 575 P.2d 1345 (1978), urged by appellants, have no factual similarity to this case, since each of those claimants suffered simultaneous accident, injury and death or disablement. To have awarded compensation benefits computed as of the dates of the respective accidents in Gilliland and Ideal does not present a conflict with what we have said here.\nOne final matter is appellee\u2019s request for attorneys fees for their services on appeal. As we have noted, the matter was submitted to the trial court upon stipulation. The record does not indicate extraordinary services below by counsel for appellee, but does disclose an award of substantial fees by the trial court. Appellee is awarded $1,000 in attorney\u2019s fees for his counsel\u2019s services on appeal. Gearhart v. Eidson, 92 N.M. 763, 595 P.2d 401 (1979); Herndon v. Albuquerque Public Schools, 92 N.M. 287, 587 P.2d 434 (1978); Ortega v. New Mexico State Highway Dept., 77 N.M. 185, 420 P.2d 771 (1966).\nJudgment is affirmed.\nIT IS SO ORDERED.\nHENDLEY and SUTIN, JJ., concurring in result.", "type": "majority", "author": "WALTERS, Judge." }, { "text": "HENDLEY, Judge\n(concurring in result).\nI concur in the result of Judge Walters\u2019 opinion and particularly, under the facts here, in the holding that the date the average weekly wage is computed is the \u201cdate when the compensable injury manifests itself.\u201d\nI agree that the attorney fees on appeal should be $1,000.", "type": "concurrence", "author": "HENDLEY, Judge" }, { "text": "SUTIN, Judge\n(concurring in result).\nI concur in the result.\nThe Legislature enacted the Workmen\u2019s Compensation Act a half century ago. By additions, amendments, and rewriting of its provisions, the Legislature has created a monster that often defies the wisdom of Solomon and the dexterity of Houdini. I write harshly to alert the Legislature to the need of a Workmen\u2019s Compensation Act based upon common sense and clear language that meets the challenge of today; provided, of course, the Supreme Court does not deny publication of this opinion.\nThe interplay of the words \u201caccident,\u201d \u201cinjury,\u201d \u201caccidental injury,\u201d \u201cdisability,\u201d \u201ctotal and partial disability,\u201d on a crossword puzzle would please the lawyers and the judiciary. But to use the interplay in the determination of workmen\u2019s compensation benefits does not conform to the normal wisdom of the Legislature. We have resolved these puzzling problems by judicial interpretation. Nevertheless, there has been constant disagreement of what we believed to be fair and equitable in each case.\nLet us turn to the present case.\nThe date of plaintiff\u2019s accident was October 2, 1976. Effective July 1,1976, the rate of compensation to be paid the workman was 78% of the average weekly wage fixed by the Employment Security Commission. The Commission fixed the amount of compensation,' effective at the time of the accident, at $114.61 per week as the average weekly wage.\nThe date of disability was August 28, 1977. Effective July 1, 1977, the rate of compensation to be paid the workman increased to 89% of the average weekly wage to be fixed by the Employment Security Commission. The Commission fixed the amount of compensation, effective at the time of disability, at $142.59 per week as the average weekly wage. See \u00a7 52-1-41, N.M.S.A.1978, enacted Laws 1975, ch. 284, \u00a7 8. Subsection B says:\n[T]he average weekly wage in the state shall be determined by the employment security commission * * *.\nSection 52-1-20, enacted in 1965, is entitled \u201cDetermination of average weekly wage.\u201d It provides a formula by which the court shall determine the average weekly wage. The average weekly wage was computed by the remuneration the workman was receiving \u201cat the time of the accident.\u201d To me, this long and complicated section was impliedly repealed by \u00a7 52-l-41(B) enacted years later.\nThe question for decision is:\nAt what rate does an employer begin to pay the workman his average weekly wage, the rate in effect at the time of the accident or the time of disability?\nLet us note some of the statutory provisions.\nSection 52-1-40 entitled \u201cWaiting period\u201d reads:\nNo compensation benefits shall be allowed * * * for any accidental injury which does not result in the workman\u2019s death, or in a disability which lasts for more than seven days; provided, however, if the period of the workman\u2019s disability lasts for more than four weeks from the date of his accidental injury, compensation benefits shall be allowed from the date of disability. [Emphasis added.]\nSection 52-l-41(C) reads:\nThe average weekly wage in the state, determined as provided in Subsection B of this section, shall be applicable for the full period during which compensation is payable, when the date of the occurrence of an accidental injury falls within the calendar year commencing January 1 following the June 30 determination. [Emphasis added.]\nSection 52-1-48 reads:\nThe benefits that a workman shall receive during the entire period of disability, and the benefits for death, shall be based on, and limited to, the benefits in effect on the date of the accidental injury resulting in the disability or death. [Emphasis added.]\nSection 52-l-41(A) begins:\nFor total disability the workman shall receive, during the period of that disability [a rate of compensation] * * *. [Emphasis added.]\nSection 52-1-42, on partial disability, uses the same language.\nWe note that the language used, as related to compensation benefits, speaks in terms of \u201cdisability,\u201d not \u201caccident.\u201d\nSection 52-1-41 was in effect both at the date of the accident and at the date of disability. There was one accident and one disability. I choose to hold that the employer shall begin to pay the workman his average weekly rate from the date of disability because a workman is not entitled to compensation for the mere happening of an accident.\nMy opinion in De La Torre v. Kennecott Copper Corporation, 89 N.M. 683, 556 P.2d 839 (Ct.App.1976) must not be misinterpreted. In De La Torre, the first accident which occurred in 1967 was governed by a statute of limitations that did not toll the limitation period. Thereafter, plaintiff completely recovered. At the time of the second accident which occurred in 1974, the amended limitation statute of 1967 which did toll the limitation period,.was in effect. Because public policy demanded it, we held that the one year period of limitation was tolled and plaintiff\u2019s complaint was filed in time. I said:\n* * * The 1967 statute applies because the date of disability is critical and the law effective at the time controls. [89 N.M. at 686, 556 P.2d at 842.]\nIn Moorhead v. Gray Ranch Co., 90 N.M. 220, 224, 561 P.2d 493 (Ct.App.1977), we said:\n* * * Therefore, De La Torre is authority for the proposition that the rate of compensation should be based upon the applicable law on the date of disability. In this case, total disability commenced in January of 1975 and the rate of compensation should be based upon the statutory rate in effect at that time. [Emphasis added.]\nDe La Torre was not authority for the proposition stated. De La Torre involved two separate accidents, disabilities, and two separate statutes. In the instant case, we are involved with one accident, one disability, and one statute that covers the date of the accident and the date of disability. However, I do agree in principle, the rule in De La Torre, that the law effective at the time of disability controls and should be applied to the instant case.\nIn Herndon, cited in Judge Walters\u2019 opinion, I said:\n* * * [Plaintiff] suffered total disability as of September 2,1975 and is entitled to disability benefits as of that date. [Not June 4, 1975.]\nIn Lamont v. New Mexico Military Institute, 92 N.M. 804, 595 P.2d 774 (1978), this Court, without reference to \u00a7 52-1-41 then in effect, decided that the amount fixed as the rate of compensation on January 21, 1977, the date of disability, was correct.\nBased upon the foregoing discussion, I concur with Judge Walters\u2019 opinion. However, in my opinion, plaintiff should be awarded an attorney fee of $2,500 for services rendered in this appeal.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Walter J. Melendres, John K. Silver, Montgomery, Andrews & Hannahs, Santa Fe, for defendants-appellants.", "John Wentworth, Steven L. Tucker, Jones, Gallegos, Snead & Wertheim, Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "596 P.2d 521\nRamon R. CASIAS, Plaintiff-Appellee, v. The ZIA COMPANY, Employer, and United States Fidelity and Guaranty Company, Insurer, Defendants-Appellants.\nNo. 3842.\nCourt of Appeals of New Mexico.\nMay 17, 1979.\nWalter J. Melendres, John K. Silver, Montgomery, Andrews & Hannahs, Santa Fe, for defendants-appellants.\nJohn Wentworth, Steven L. Tucker, Jones, Gallegos, Snead & Wertheim, Santa Fe, for plaintiff-appellee." }, "file_name": "0078-01", "first_page_order": 124, "last_page_order": 130 }