{ "id": 1575517, "name": "Lawrence PURCELLA, Plaintiff-Appellee, v. NAVAJO FREIGHT LINES, INC., Employer, Self-Insured, Defendant-Appellant", "name_abbreviation": "Purcella v. Navajo Freight Lines, Inc.", "decision_date": "1980-12-16", "docket_number": "No. 4770", "first_page": "306", "last_page": "310", "citations": [ { "type": "official", "cite": "95 N.M. 306" }, { "type": "parallel", "cite": "621 P.2d 523" } ], "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": "95 N.M. 267", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575521 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0267-01" ] }, { "cite": "89 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861840 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0683-01" ] }, { "cite": "90 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869120 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0220-01" ] }, { "cite": "92 N.M. 804", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557144 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0804-01" ] }, { "cite": "82 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326184 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0072-01" ] }, { "cite": "85 N.M. 35", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769916 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0035-01" ] }, { "cite": "86 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2826210 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0393-01" ] }, { "cite": "79 N.M. 109", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738136 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0109-01" ] }, { "cite": "88 N.M. 615", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838672 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0615-01" ] }, { "cite": "93 N.M. 78", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568721 ], "weight": 2, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0078-01" ] } ], "analysis": { "cardinality": 549, "char_count": 11421, "ocr_confidence": 0.823, "pagerank": { "raw": 2.287117157608593e-07, "percentile": 0.7858263165149783 }, "sha256": "5ccb208d4e3ebfd6c93dfd55a0c88c0a5754ed92c3acf7e5d5e58105edb62b71", "simhash": "1:7528b6d3dae67714", "word_count": 1843 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "WALTERS, J., concurs in part and dissents in part." ], "parties": [ "Lawrence PURCELLA, Plaintiff-Appellee, v. NAVAJO FREIGHT LINES, INC., Employer, Self-Insured, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThis is an appeal by defendant from a judgment in a workmen\u2019s compensation case in which the parties stipulated as to all issues except the applicable compensation rate to be paid plaintiff and the number of weeks remaining for which payment shall be made. We affirm.\nTwo stipulations were filed November 16, 1979. The pertinent facts stipulated in an Addendum are:\n1. Plaintiff sustained a work-related injury to his leg .. . [on] September 27, 1977.\n2. [T]he Plaintiff was unable to work for the period beginning September 28, 1977, theough [sic] March 19, 1978. The Plaintiff returned to work on March 20, 1978. During this period of time, approximately 245/7 weeks, the Plaintiff was paid compensation in the amount of $142.59 weekly.\n3. The current average weekly wage in the State of New Mexico is $186.38.\n4. The parties have agreed that Plaintiff . .. has sustained a permanent partial disability of thirty-five percent (35%).\n5. Due to the injury sustained on September 27, 1977, Plaintiff has received Workmen\u2019s Compensation for the period beginning September 28,1977, to October 29, 1979.\n6. Plaintiff filed suit against the Defendant on September 15, 1978, on the basis that he sustained various leg injuries while working in and on behalf of the Defendant.\n7. The issue of the applicable compensation rate to be paid to the Plaintiff, based on the stipulation of thirty-five percent (35%) disability, as it applies to the present compensation rates in the State of New Mexico shall be left to this Court for its determination.\nThe parties also stipulated to the following pertinent facts:\n1. Defendant agrees to pay the Plaintiff $3,500.00 which represents compensation for the period from March 20,1978 to October 29, 1979. ...\n2. ... Defendant agrees to remain liable for future medical bills relating to the injury of September 27, 1977.\n\u25a03. ... The amount of $3,500.00 represents the permanent partial disability payment to Mr. Purcella for the period of March 20, 1978 to October 29, 1979.\nWe gather from these stipulations entered into 12 months after plaintiff\u2019s complaint was filed that:\n1. From September 27, 1977 thru March 19, 1978, about 246/7 weeks, defendant paid plaintiff workmen\u2019s compensation for total disability in the amount of $142.59 weekly, the average weekly wage.\n2. From March 20,1978 thru October 29, 1979, defendant paid plaintiff $3,500.00 which represented a permanent 35% partial disability payment at the same rate.\n3. The only question left for the trial court to decide was: Beginning October 30, 1979, at what compensation rate should defendant pay plaintiff based upon the stipulation of 35% disability?\nIn its judgment, the trial court made a finding:\n6. That the average weekly wage in effect in New Mexico on the date of the stipulation of the percentage of disability on October 29, 1979, was $186.38. [Emphasis added.]\nDefendant claims that, in accordance with the stipulations entered into, it should pay plaintiff $49.61 per week for 491% weeks based upon the average weekly wage of $142.59 in effect on September 27, 1977, the date of the injury.\nThe trial court gave judgment that defendant pay plaintiff $65.23 per week for a period of 575% weeks commencing October 30, 1979, based upon the current average weekly wage of $186.38.\nFirst, defendant contends that the rate of compensation is measured at the time plaintiff\u2019s wage-earning capacity was affected.\nDefendant quotes the following from Casias v. Zia Co., 93 N.M. 78, 80, 596 P.2d 521 (Ct.App.1979):\nThe rate of compensation, being intended to bear some relationship to the workman\u2019s wage earning capacity [citation omitted], is measured as of the time that wage-earning capacity is affected, i. e., the date of disability.\nUnfortunately, this was the rule prior to 1965 and inadvertently carried forward after the applicable section of the Workmen\u2019s Compensation Act had been amended.\nIn 1959, \u201cDisability\u201d meant \u201ca decrease of wage earning ability.. .. \u201d Section 59-10-12.1(A), N.M.S.A.1953. In 1965, this section was amended. Total and partial disability was defined in its present form under \u00a7\u00a7 52-1-24 and 52-1-25, N.M.S.A.1978. The amendment changed the primary test of disability from wage earning ability to capacity to perform work as delineated in the statute. Medina v. Zia Company, 88 N.M. 615, 544 P.2d 1180 (Ct.App.1975); Quintana v. Trotz Construction Company, 79 N.M. 109, 440 P.2d 301 (1968); Maes v. John C. Cornell, Inc., 86 N.M. 393, 524 P.2d 1009 (Ct.App.1974); Trujillo v. Tanuz, 85 N.M. 35, 508 P.2d 1332 (Ct.App.1973); Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970).\nLamont v. New Mexico Military Institute, 92 N.M. 804, 595 P.2d 774 (Ct.App.1979) carried this erroneous rule forward based upon a 1962 opinion.\nThe established rule is that the rate of compensation in effect on the date of disability applies, not the date of the accident. Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493 (Ct.App.1977); De La Torre v. Kennecott Copper Corporation, 89 N.M. 683, 556 P.2d 839 (Ct.App.1976).\nThe accidental injury occurred on September 27, 1977. Plaintiff was disabled from September 28, 1977 until March 20, 1978. Defendant stopped payments. If payments had continued, the rate of compensation to be paid would be the average weekly wage of $142.59 in effect on September 28, 1977. On September 15, 1978, plaintiff filed his claim for workmen\u2019s compensation benefits because defendant failed and refused to pay.\nThe issue before the trial court was whether plaintiff\u2019s disability continued after March 19, 1978, the day that payments were stopped. On November 16,1979, fourteen months after suit was filed, defendant, by stipulation, agreed that plaintiff was 35% permanently and partially disabled from March 20, 1978 to October 29, 1979, and paid plaintiff for that period at the rate of $142.59. Defendant now claims that disability did continue from September 28, 1977 to October 30, 1979. After withholding payments of $3,500.00 for two years and nine months, defendant now wants plaintiff to \u201chold the bag,\u201d to carry the responsibility for the wrong committed by defendant.\nDefendant placed plaintiff in this syllogistic posture: (1) Plaintiff was disabled from September 27,1977 to March 20, 1978. He was no longer disabled. (2) On November 16,1979, defendant admitted that plaintiff was disabled and it was at fault in terminating payments. (3) Therefore, plaintiff\u2019s rate of compensation should be determined as of September 28, 1977, for the benefit of defendant.\nThe flaw in defendant\u2019s reasoning flows from its desire to profit by its own wrong. \u201cTo do one right\u201d is the essence of the Workmen\u2019s Compensation Act.\nOn November 16, 1979, the date of the stipulation, defendant conceded the existence of plaintiff\u2019s disability. To be fair to plaintiff, this date became the one at which disability came into existence. The average weekly wage was $186.38. Plaintiff was entitled to this benefit.\nWe hold the rule to be that where a workman suffers disability as a result of' an accidental injury and the employer voluntarily pays compensation benefits and then wrongfully terminates payment thereof, causing the workman to seek relief in the courts, the date that disability is determined in the court proceedings is the date that the applicable rate of compensation applies, not the date of the accidental injury. An employer cannot \u201ceat his cake and have it too.\u201d An employer cannot have it both ways. We have said innumerable times that an employer and a workman must comply with the spirit of the Workmen\u2019s Compensation Act, i. e., a common sense concept of fairness in the view of a subjective eye that reviews the facts.\nSecond, defendant claims that the Workmen\u2019s Compensation Act requires the applicable rate of compensation to remain in effect for the entire period during which compensation is paid. We agree. Defendant states:\nThe weekly compensation benefit on September 27,1977, was $142.59. Purcella has continually received, since the date of the parties\u2019 stipulations [November 16, 1979], compensation benefits of thirty-five percent (35%) of $142.59. [Emphasis added.]\nDefendant deftly omitted the non-payment of compensation from March 20, 1978 to November 16,1979. We cannot translate this failure to pay for 83 weeks as an \u201centire period during which compensation is paid.\u201d We again caution employers not to use devious routes in search for relief. In a half century, during the existence of the Workmen\u2019s Compensation Act, it has become almost sacrosanct that the duty of an appellate court is to search for the protection of a workman and not for relief sought by an employer who is at fault.\nWhat we have said with reference to the applicable rate of compensation to be paid applies to a determination of the number of weeks for which a workman should be paid compensation. We cannot include the 83 weeks during which period plaintiff was not currently paid compensation for disability, and during which period the employer caused plaintiff to suffer the loss of use of $3,500.00 to which he was entitled. The employer had the benefit of the use of this money, to the detriment of plaintiff. It was not entitled to benefit of \u201cweeks\u201d as well as the benefit of the money.\nPlaintiff is entitled to an award of $2,500.00 for the services of its attorney in this appeal. Costs shall be paid by defendant.\nAffirmed.\nIT IS SO ORDERED.\nLOPEZ, J., concurs.\nWALTERS, J., concurs in part and dissents in part.\nWALTERS, Judge\n(concurring in part, dissenting in part).\nI agree that the rate of compensation awarded by the trial court should be measured at the rate in effect on October 29, 1979, when the parties stipulated to claimant\u2019s 35% disability. The $3,500 belatedly paid for the period from March 20, 1978 to October 29, 1979 was not a negotiated settlement amount, but was stipulated to \u201crepresent compensation\u201d due for that period. As payment for 84 weeks during which compensation was withheld, it is patently clear that the amount represented about 29%, not 35%, of the average weekly wage at which compensation was initially commenced. The 35% disability agreed upon could not have referred to a disability in that degree existing earlier than October 29, 1979.\nThe appellants misread Casias and La-Mont, supra. Wage earning capacity relates to the reason for compensation benefits, not to the test to be applied in determining disability. See Chavira v. Gaylord Broadcasting Co., 95 N.M. 267, 620 P.2d 1292 (App.1980). The amount of compensation due is to be measured as of the date of disability.\nI agree with appellant\u2019s argument that 35% disability benefits were erroneously awarded for 575% weeks. The $3,500 to be paid was compensation for 84 weeks; the initial period of total compensation paid was for 24% weeks. Since \u00a7\u00a7 52-1-41 and -42, N.M.S.A.1978, limit benefits to a total of 600 weeks, the judgment should be amended to provide that payment be made to plaintiff at the rate of $65.23 per week for 491% weeks.", "type": "majority", "author": "SUTIN, Judge. WALTERS, Judge" } ], "attorneys": [ "James M. Kennedy, Coors, Singer & Stratton, Albuquerque, for defendant-appellant.", "Michael L. Danoff, Michael Danoff & Associates, P. C., Albuquerque, for plaintiffappellee." ], "corrections": "", "head_matter": "621 P.2d 523\nLawrence PURCELLA, Plaintiff-Appellee, v. NAVAJO FREIGHT LINES, INC., Employer, Self-Insured, Defendant-Appellant.\nNo. 4770.\nCourt of Appeals of New Mexico.\nDec. 16, 1980.\nJames M. Kennedy, Coors, Singer & Stratton, Albuquerque, for defendant-appellant.\nMichael L. Danoff, Michael Danoff & Associates, P. C., Albuquerque, for plaintiffappellee." }, "file_name": "0306-01", "first_page_order": 338, "last_page_order": 342 }