Reed v. Fish Engineering Corporation , 76 N.M. 760 ( 1966 )

OPINION

JOE W. WOOD, Judge, Court of Appeals.

This is the second appeal in this workmen’s compensation case. For the first appeal see 74 N.M. 45, 390 P.2d 283. In this appeal defendants raised three issues: (1) there is no evidence °to support a finding under § 59-10-14, N.M.S.A.1953; (2) a compensation award to plaintiff for a 1962 injury should be deducted from the partial permanent disability award in this case; and (3) the allowance for attorney’s fees is excessive. By cross-appeal plaintiff asserts that the allowance for attorney fees is inadequate.

Plaintiff was injured at Aneth, Utah, on July 29, 1959. His claim was filed October 12, 1961. The trial court found that there was conduct on the part of the defendants that reasonably led plaintiff to believe that compensation would be paid. The trial court concluded that plaintiff was not deprived of his right to compensation although the suit was not filed within the time prescribed by the Workmen’s Compensation Act. The trial court awarded temporary total and partial permanent benefits and credited against this award the compensation payments previously made by defendants under Utah law.

The first issue is whether there is evidence to support the trial court’s application of § 59-10-14, N.M.S.A.1953. If such evidence is lacking, then the claim is barred by § 59-10-13.6, N.M.S.A.1953. Section 59-10-14 reads:

“The failure of any person entitled to compensation under the Workmen’s Compensation Act [59-10-1 to 59-10-37] to give any notice, file any claim, or bring suit within the time fixed by the Workmen’s Compensation Act shall not deprive such person of the right to compensation where the failure was caused in whole or in part by the conduct of the employer or insurer which reasonably led the person entitled to compensation to believe the compensation would be paid.”

Defendants paid compensation from date of injury to June 2, 1960. From June 2, 1960, to November 9, 1960, there was conduct on the part of defendants which would reasonably lead plaintiff to believe compensation would be paid. From November 9, 1960, to August 7, 1961, defendants again paid compensation. The payments were at the rate of $37.00 per week and were under the Utah law.

Defendants assert that their conduct must have reasonably led the plaintiff to believe that compensation would be paid under the New Mexico Workmen’s Compensation Act. They point out that plaintiff never did say that he thought the payments were being made under New Mexico law. They claim that § 59-10-14, N.M.S.A.1953, cannot apply if plaintiff did not believe it was New Mexico compensation that was being paid.

This first issue is controlled by the opinion on the first appeal since that opinion is the law of the case. Albuquerque Broadcasting Co. v. Bureau of Revenue, 54 N.M. 133, 215 P.2d 819.

In the first appeal we reversed the partial summary judgment which held that plaintiff’s claim was barred under § 59-10-13.6, N.M.S.A.1953. The opinion states:

“* * * [T]he question which we must determine is whether a material issue of iact was present concerning whether payments were made under Utah law, and if so did they effect a waiver or estoppel of claimant to any right to claim benefits under the New Mexico law? We are clear that an issue of fact was present, :and that the affidavits before the court prior to trial could reasonably raise an inference which would have supported a finding that payments were not made or knowingly received under the Utah law •so as to bar this action. * * * ”

.And further:

'“We are satisfied that if the facts are as ■claimed by plaintiff, payments made and .accepted could just as effectively lull -claimant into a reasonable feeling of security as to his being entitled to compensation under New Mexico law as would continued voluntary payment of wages, and would accordingly be conduct •excusing the filing of the claim within ■one year after the right to compensation arose. See Ritter v. Albuquerque Gas & Electric Co., 47 N.M. 329, 142 P.2d 919, 153 A.L.R. 273. This is in strict accord with § 59-10-14, N.M.S.A.1953. On remand for the error in deciding the issues on summary judgment, §§ 59-10-13.6 and .59-10-14, N.M.S.A.1953, should be applied as herein explained.”

Thus, on remand, the issue to be decided by the trial court was whether the facts were as claimed by the plaintiff. This application of the law of the case' is set forth in Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231:

“It was held by this court on the first appeal that the allegations above recited stated a cause of action, * * *

“ * * * If facts proved establish the above allegations, then the plaintiff is entitled to recover, whether the law of the case, as we have stated it in the first opinion, is right or wrong * *

The facts proved at the trial went further than those claimed by plaintiff in the affidavit. The claim made by the affidavit is that compensation was voluntarily paid and voluntarily accepted, that there had not been a failure or refusal to pay compensation for a year or more prior to filing of the complaint, that part of the compensation payments were mailed to him from Salt Lake City and part were mailed to him by the adjuster in Farmington, New Mexico, and that he never presented a claim to or made an appearance before the Utah Industrial Commission. These facts are established by the evidence.

The trial court’s application of § 59 — 10— 14, N.M.S.A.1953, is supported by the following additional facts. Plaintiff didn’t know under which act the compensation was paid and didn’t know there was a difference between the New Mexico and Utah acts until some time in 1962 when he was so informed by his attorney. Plaintiff didn’t realize there was a problem, and while compensation was being paid he “rested easy.” Plaintiff testified there was no indication from anyone that he would not receive compensation under the New Mexico act.

At all times material plaintiff resided in New Mexico. He was hired in New Mexico for the job on which he was injured. He received medical treatment in Farmington, New Mexico, and his first back operation was performed by an Albuquerque surgeon.

The insurer provided compensation coverage for employer in both New Mexico and Utah. By a letter dated January 17, 1961, the defendant employer specifically pointed out to plaintiff that the defendants were paying compensation under the Utah act. Plaintiff acknowledged that he received and read this letter.

Prior to receipt of the letter in January 1961 the above facts support an inference that the payments were not knowingly received under the Utah law so as to bar the action. The conduct of defendants having lulled plaintiff into a feeling of security as to his being entitled to compensation under New Mexico law, their conduct excused plaintiff’s failure to file the claim within one year after the right to compensation arose. The law of the case is that such conduct by defendants meets the requirements of § 59-10-14, N.M.S.A.1953.

After receipt of the January 1961 letter, plaintiff could not have had “a feeling of security” as to New Mexico compensation. The letter clearly stated the position of defendants — that entitlement to compensation was under Utah law. The limitation period for filing his claim began to run from receipt of that letter. The complaint, filed October 12, 1961, was in time. See Elsea v. Broome Furniture Co., 47 N.M. 356, 143 P.2d 572.

In July of 1962 plaintiff suffered an injury to his low back in the same area that was injured while working for defendant employers on July 29, 1959. For the \962 injury plaintiff was paid temporary total compensation benefits of $2,052.00 and received a lump sum settlement of $3,800.00. Defendants’ second issue is that this $3,800.-00 should be deducted from the award of 50% partial permanent disability in this case. Defendants assert that the permanent partial disability that he now suffers is the same permanent partial disability resulting from the 1962 accident.

The trial court refused defendants’ requested finding that plaintiff’s partial permanent disability as of the time of trial was. the same disability which followed the 1962 accident; refused to find that the current disability was due in part to the 1962 injury and refused to conclude that the $3,800.00 settlement for partial permanent disability should be deducted from the amount of partial permanent disability in this case.

The trial court found that plaintiff’s disability was proximately caused by the 1959 injury, that this disability was 50% and that plaintiff’s impaired physical condition was medically a result of the 1959 accident even though the condition had been complicated by the 1962 injury.

There is evidence to support the trial court’s findings. Dr. Schultz was of the opinion that plaintiff had a 50% disability to the body as a whole, that this disability was a consequence cf the 1959 injury and the 1962 injury did not alter this disability. Dr. Smith treated plaintiff for the 1962 injury. Dr. Smith testified that he couldn’t tell for sure to what injury the disability was to be attributed. Dr. Smith admitted, that in one of his written reports, he indicated that there was no impairment resulting from the 1962 injury.

Since the* disability awarded was for the 1959 injury, there is no factual basis on which to apply a deduction. Defendants assert that plaintiff should not be paid twice for the same disability. The findings are to the effect that he is not being so paid. Defendants assert that plaintiff could have still another accidental injury to the same area previously injured and would be able to collect more than 100% due to his disability. We do not decide whether an injury to the “same area” would be an injury to the “same member or function.” If, as a fact, they are the same, § 59-10-18.8(D), N.M.S.A.1953, answers this contention.

Defendants’ third issue is that the allowance of $2,600.00 to plaintiff’s attorney is excessive and should not have been based in part on services performed in connection with the prior appeal. While plaintiff’s attorney referred to services performed in the prior appeal in setting forth the claim for attorney fees, nothing in the record indicates that the trial court considered the prior appeal in setting the fees.

The trial court found that $2,600.00 was a reasonable attorney fee “in this action.” Section 59-10-23, N.M.S.A.1953, allows the trial court to set fees which “the court may deem reasonable and proper.” The record in this case shows a hearing on defendants’ motion for summary judgment and two trials. The proceedings show the claim was contested on the issues of employment in New Mexico, filing of the claim within the proper time, the extent of disability and the recovery for certain medical bills.

There was no abuse of discretion by the trial court in setting the attorney fee. Garcia v. J. C. Penney Co., 52 N.M. 410, 200 P.2d 372.

Plaintiff cross-appeals, claiming the award of $2,600.00 is inadequate. We cannot state, as a matter of law, that the fees are inadequate. The amount of fees awarded is discretionary with the trial court, subject to the provisions of § 59-10-23, N.M.S. A. 1953.

The judgment is affirmed with an additional award'to plaintiff of $1,000.00 for the services of his attorney in representing him in this appeal. It is so ordered.

MOISE and COMPTON, JJ., concur. CARMODY, C. J., and LaFEL E. OMAN, J., Court of Appeals, dissent.