Trujillo v. Tanuz , 85 N.M. 35 ( 1973 )

HENDLEY, Judge

(concurring in part and dissenting in part).

I do not agree with nor can I see the purpose of that part of the majority opinion under section “B”. There was a substantial compliance with the rules.

I do not agree with that part of the majority opinion under section “C”. Plaintiff challenged the trial court’s finding of fact No. 5 for lack of substantial evidence in the brief-in-chief where he stated: “Appellant [plaintiff] is unaware of any testimony that would support a determination that Mr. Trujillo [plaintiff] was only 50 per cent disabled.” A review of the record, however, does disclose substantial evidence to support the finding.

I do not agree with that part of the majority opinion under section “D”. Section 59-10-12.13(D), N.M.S.A.1953 (Repl. Vol.1960, Supp.1971) is not applicable. It deals exclusively with “unusually large” earnings. I do agree with that part of the majority opinion which relies on the reasoning of 2 Larson’s, Workmen’s Compensation Law, § 60.11 (1970). I concur in the reversal and remand on this point for correction of the judgment entered.

I do not agree with that part of the majority opinion under section “E”. It misconceives plaintiff’s argument. Plaintiff argues he should have interest from 31 days after the date of the occurrence of the disability. Section 59-10-13.5, N.M.S. A. 1953 (Repl.Vol. 1960, Supp.1971). Two reasons are advanced in support of this argument: first, the trial court found plaintiff disabled and defendants had failed to pay “the compensation benefits when they were due,” and, second, that plaintiff “should not be penalized” for defendants’ failure to pay promptly. The answer is simple. The Workmen’s Compensation Act does not provide for such an award. However, under the majority opinion and under the dissent there is no error in the judgment.

I do not agree with that part of the majority opinion under section “F”. The provisions of § 59-10-23(D), N.M.S.A.1953 (Repl.Vol. 1960) relating to attorneys fees are mandatory. Keyser v. Research Cottrell Company, 84 N.M. 173, 500 P.2d 997 (Ct.App.1972). The record is silent as to what was actually considered by the trial court. Absent a showing that the trial court considered something other than the statutory requirements we cannot say, as a matter of law, that the trial court did not follow the mandate of § 59-10-23(D), supra.

For the foregoing reasons, I concur in part and dissent in part, disagreeing with the reasoning of the majority.