Briscoe v. Hydro Conduit Corporation , 88 N.M. 568 ( 1975 )

OPINION

HENDLEY, Judge.

Plaintiff filed an action pursuant to the Workmen’s Compensation Act (Sections 59-10-1 through 59-10-37, N.M.S.A.1953 (2d Repl. Vol. 9, 1974, pt. 1)) alleging total disability and seeking a lump sum award pursuant to § 59-10-18.2, supra.

Plaintiff’s affidavit admitted the $75.00 weekly payment and the following sworn statements were set forth :

“That defendants have failed to make payment of a bill in the amount of $50.-00 for diagnostic studies made of the plaintiff at the direction of Dr. Chester, one of the physicians to whom plaintiff has been referred by defendants.

“That plaintiff has not been employed or able to do any type of work since on or about July 1, 1974 except attempting to perform work as a bartender for a few hours under a rehabilitation program and that he has performed no other work because of said disability, except in attempting to sell Indian jewlery on a limited part time basis for himself.

“That plaintiff is married but that his wife is not and has not been employed and is dependent upon him for support, in addition to his four children: Gerald, born February 8, 1959; George, Jr., born August 24, 1960; Georgianna, born December 16, 1961; and Mike, born November 22, 1964, who reside with him in a mobile home. That he has lost his mobile home and car because of inability to make payment of installments due, and is temporarily housed in a mobile home owned by a friend.”

The trial court, after hearing ordered: “. . . that the Complaint herein should be, and is hereby dismissed, on the ground that said Complaint is prematurely filed.” The majority disagree but for different reasons. My reasoning is as follows.

Section 59-1Ü-36, supra, states in part:

“ . . . No claim shall be filed by any workman who is receiving maximum compensation benefits; ...” [Emphasis added].

Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975) held:

“When we consider the long recognized principle that the workman’s compensation act is to be liberally construed in favor of the employee (Kosmicki v. Aspen Drilling Company, 76 N.M. 234, 414 P.2d 214 (1966)), together with the implicit recognition in Rayburn [Rayburn v. Boys Super Market, Inc., 74 N. M. 712, 397 P.2d 953] and Nasci [Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913] that medical expenses are 'compensation’, we conclude that medical expenses are compensation for the purpose of allowing attorney fees under § 59-10-23 (D). ...”

In light of Schiller and the liberal construction philosophy stated therein plaintiff’s claim was not premature. The $50.00 medical bill had not been paid. Medical payments have been ruled to be compensation for the purpose of allowing attorney fees under § 59-10-23(D), supra. If medical bills arc compensation for one purpose they should be compensation for all purposes. I fail to find within the Workmen’s Compensation Act statutory language which would lead one to believe there are differing kinds of compensation.

Having decided the issue as I have I need not reach the questions decided by Judge Sutin, in the affirmative, of whether a party in interest (plaintiff), who is being paid maximum compensation benefits, is entitled pursuant to § 59-10-13.5 (B), supra, to a determination of total permanent disability, and if so, then to a determination of a lump sum award.

Reversed.

It is so ordered.

SUTIN, J., specially concurs. HERNANDEZ, J., dissents.