Dave W. WEBB, Plaintiff-Appellee, v. W. A. HAMILTON, Jr., d/b/a W. A. Hamilton, Jr., Construction Company, Employer, and Peerless Insurance Company, Insurer, Defendants-Appellants.
No. 8132
Supreme Court of New Mexico
Jan. 22, 1968
78 N.M. 647 | 436 P.2d 507
The facts proved provide strong support for the findings made and bring the case within the rule announced in the cases last cited. There was no reversible error. Compare Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410 (1942).
Finally, appellants complain that an award of $2,375.00 as attorney fees for representing claimant in the district court “is unjust, and without foundation in fact or law.” Consideration of appellants’ arguments and authorities fails to convince us that under our holding in Shillinglaw v. Owen Shillinglaw Fuel Company, 70 N.M. 65, 370 P.2d 502 (1962), the trial court‘s determination was outside the bounds of reason, under the circumstances, so as to amount to an abuse of discretion. These are the tests to be applied as announced in that case.
Counsel for appellees have received no allowance of attorney fees for representing claimant and appellees in this court in either this appeal or the previous one. It now has been determined that appellees should prevail and, accordingly, $1,000.00 is fixed as attorney fees in this court.
No reversible error being present, the cause is affirmed and remanded to the district court with instructions to proceed in accordance herewith.
It is so ordered.
CHAVEZ, C. J., and COMPTON and CARMODY, JJ., concur.
NOBLE, Justice (dissenting).
The injury in this case was limited to a specific body member, the lower left leg. The disability to other parts of the body for which total permanent disability compensation was awarded was clearly “disability resulting from an accidental injury to specific body members,” i. e., the lower part of the left leg. The trial court specifically so found.
For the reasons set forth in the dissent to Webb v. Hamilton, No. 8132, opinion filed this day,
Toulouse, Ruud, Gallagher & Walters, Albuquerque, for plaintiff-appellee.
OPINION
MOISE, Justice.
Plaintiff-appellee, while employed by appellant-employer received an injury to his right eye which arose out of and in the course of such employment. Previously, he had lost the sight in his left eye. In addition to finding these facts, the court also found as follows:
“3. That the injury to plaintiff‘s right eye resulted from a piece of metal becoming lodged in the right eye, and on that date, namely February 10, 1964, plaintiff did not suffer any other physical injury to any other part of his body or any other emotional or mental injury affecting his body as a whole; and that it was not until sometime after the accident when the sight in plaintiff‘s right eye was materially affected and diminished, that the emotional instability and depression reaction followed because of the loss of the functional ability to get around; the worry about blindness; and the worry about financial obligations.”
“7. That as set forth in Paragraph 3 hereof, in addition to the injury incurred to plaintiff‘s right eye, plaintiff, as a natural and direct result of the aforesaid accident, incurred an injury to his nervous, mental and/or emotional system, which said injuries have rendered the plaintiff totally and permanently disabled.”
“8. That the aforesaid injury to plaintiff‘s nervous, emotional and/or mental system consists of, but is not limited to, a continual tremor in his right arm, a depressive reaction neurosis and a marked change in his personality from a normal, reasonably happy and well adjusted individual to a depressed, withdrawn, recluse type of individual.”
“10. That the diminution of vision in his right eye caused by the accident in question varies from 20/40 to almost total blindness, depending on light conditions, plaintiff being almost totally blind in conditions of bright light, but having considerable vision in conditions of dim light.”
Based on these findings, the court concluded, as follows:
“4. That defendants should assume and pay plaintiff the sum of $38.00 a week compensation commencing from
December 12, 1964, to date, and to continue such payments until further order of the Court, or until they have paid a total of 500 weekly payments.”
Appellants do not question or attack any of the findings made by the court. They are accordingly the facts of the case binding on us. Cooper v. Bank of New Mexico, 77 N.M. 398, 423 P.2d 431 (1967); J. A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 404 P.2d 122 (1965).
They address themselves to claimed error in conclusion No. 4, quoted above. It is appellants’ position that
“A. For disability resulting from an accidental injury to specific body members * * *, the workmen shall receive * * * a maximum compensation of thirty-eight dollars ($38.00) a week for the following periods:
* * * * * *
“(41) Total blindness of one eye * * * 120 weeks
* * * * * *
“D. The loss of * * * both eyes * * * constitutes total disability, permanent in character; provided, the employer shall not be liable for compensation for total disability if the loss of one * * * eye occurred before the accidental injury for which claim is made, but in that event compensation shall be paid only in accordance with the schedule set forth in Subparagraph A of this section.”
It cannot be disputed that appellants’ position is correct insofar as benefits to be awarded for injury to the right eye are concerned. However, in the instant case the metal which struck the right eye causing the injury thereto and disability therefrom also injured plaintiff‘s “nervous, mental and/or emotional system” and, as a result, plaintiff is totally disabled.
In our view of
In 1963 the definition of disability, whether partial or total was changed (Ch. 269, Sec. 1, N.M.S.L.1963), now appearing as
While there have been other changes in the workmen‘s compensation act over the years, the essential relationship of
The language of
We have long since recognized accidental injuries to the nervous system as compensable when resulting in disability. See Ross v. Sayers Well Servicing Co., 76 N.M. 321, 414 P.2d 679 (1966); Gonzales v. Gackle Drilling Company, 70 N.M. 131, 371 P.2d 605 (1962). Indeed, we find ourselves unable to distinguish the present case from Jensen v. United Perlite Corporation, supra. That case involved an injury to an arm. Although the arm healed, because of traumatic neurosis or hysteria, claimant was unable to work. We there said:
“In Boggs v. D & L Construction Company, supra, we held that the scheduled injury section of the Workmen‘s Compensation Act is not exclusive when there is proof of a separate and distinct impairment to other parts of the body. See also, Salome v. Eidal Manufacturing Company, 75 N.M. 354, 404 P.2d 308. In the instant case, expert testimony indicates that claimant suffered an injury to his mind, as a result of an accident, which has resulted in total and permanent disability according to the conclusions of the trial court. This is a separate and distinct injury to a part of the body other than his left arm. It is not solely the fact that claimant is unable to use his left arm, which has prevented him from returning to some type of employment. It appears to be the loss of his self-respect which has caused much of his uselessness. It was entirely proper for the trial court to conclude that claimant was totally and permanently disabled, under the facts and testimony of this case.”
To hold as argued by appellants would have the anomalous result of permitting recovery for injury beyond the scheduled amount, if only one eye is injured and a neurosis results, but would deny it if the injury is to a second eye and the same neurosis follows. We see nothing in
From the foregoing, it follows that the judgment should be affirmed, together with an award of $750.00 attorney fees to plaintiff for representation on this appeal. It is so ordered.
CHAVEZ, C. J., and COMPTON and CARMODY, JJ., concur.
NOBLE, Justice (dissenting).
In my view the majority have today not only ignored the plain and express mandate of the legislature, but by judicial construction have effectively rendered meaningless and ineffective the scheduled-loss provision of the workmen‘s compensation law.
It is undisputed that Dave W. Webb, who had lost the sight of his left eye as the result of a prior accident while working for a different employer, lost the effective use of his right eye as the result of the accidental injury complained of which occurred February 10, 1964. Thus, this injury caused the effective loss of the use of a
We have previously had occasion to consider the effect of injuries to scheduled members on general bodily impairment. See Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000 (1945); Reck v. Robert E. McKee General Contractors, 59 N.M. 492, 287 P.2d 61 (1959); Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067 (1958); Lee v. U.S.F. & G. Co., 66 N.M. 351, 348 P.2d 271 (1960); Rhodes v. Cottle Constr. Co., 68 N.M. 18, 357 P.2d 672 (1960); Hamilton v. Doty, 71 N.M. 422, 379 P.2d 69 (1962). Each of those cases involved injuries occurring prior to enactment of ch. 67, Laws 1959.
The provision of the workmen‘s compensation statute applicable to the above cases provided benefits for injury to specific body members.
In view of the changed language of the 1959 statute, it becomes necessary to compare the language of § 17, ch. 113, Laws 1929 (
With respect to the loss of a second scheduled member,
“The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two (2) thereof in the absence of conclusive proof to the contrary, shall constitute total disability, permanent in character; PROVIDED, that the employer shall not be liable for compensation for total disability if the loss of one (1) arm, foot, leg, or eye occurred prior to such accident, but in that event compensation shall be paid only in accordance with the schedule herein for partial disabilities but the definitions of total disability contained in this paragraph shall not be exclusive of other cases of total disability.”
Interpreting the above statutes, in force when the accidents in the cases cited above occurred, we held that additional compensation was allowable for impairment to other parts of the body where such impairment or disability extended to non-scheduled parts of the body as a result of the injury to the specific member.
The statute was not merely amended—it was completely repealed and an entirely new scheduled-loss section enacted. The new section reads:
”
59-10-18.4. Compensation benefits—Injury to specific body members . A. For disability resulting from an accidental injury to specific body members including the loss or loss of use thereof, the workman shall receive * * * not to exceed a maximum compensation of thirty-eight dollars ($38.00) a week for the following periods:”
The comparable provision for loss of a second specific body member,
“D. The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two [2] of them, in the absence of conclusive proof to the contrary, constitutes total disability, permanent in character; provided, the employer shall not be liable for compensation for total disability if the loss of one [1] arm, foot, leg or eye occurred before the accidental injury for which claim is made, but in that event compensation shall be paid only in accordance with the schedule set forth in subparagraph A of this section.”
The fundamental rule of statutory construction is to ascertain and give effect to the intention of the legislature. State v. Chavez, 77 N.M. 79, 419 P.2d 456; Montoya v. McManus, 68 N.M. 381, 362 P.2d 771; Janney v. Fullroe, Inc., 47 N.M. 423, 144 P.2d 145. Statutes are to be read and given effect as written, that is, the legislative intent is to be determined primarily by the language of the act. De Graftenreid v. Strong, 28 N.M. 91, 206 P. 694; George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285; Albuquerque Bus Co. v. Everly, 53 N.M. 460, 211 P.2d 127. Words used in a statute are to be given their ordinary and usual meaning unless a different meaning is clearly indicated. Gonzales v. Oil, Chemical and Atomic Workers Int‘l Union, 77 N.M. 61, 419 P.2d 257; Torres v. Gamble, 75 N.M. 741, 410 P.2d 959. Furthermore, we are committed to the rule that it is important in construing legislative intent to examine the history and historical background of the legislation, that is, to compare the statute being considered with prior statutes on the same or similar subject matter. Bradbury & Stamm Constr. Co. v. Bureau of Revenue, 70 N.M. 226, 372 P.2d 808; Munroe v. Wall, 66 N.M. 15, 340 P.2d 1069; State v. Prince, 52 N.M. 15, 189 P.2d 993; James v. Bd. of Com‘rs, 24 N.M. 509, 174 P. 1001; State ex rel. Lorenzino v. County Com‘rs, 20 N.M. 67, 145 P. 1083, L.R.A. 1915C, 898; Sutherland, Statutory Construction (3d Ed.) Vol. 2, § 5002.
A comparison of the repealed scheduled-loss provision (
It is difficult to conceive how the legislative intent to limit compensation for any disability resulting from the loss or loss of use of the specific body member to the amounts provided in that section could have been more clearly expressed. The comparison of the repealed provision and the newly enacted statute makes it at once apparent that whereas under the old law all disability resulting from an injury to a specific member was compensable in addition to that provided for injury to the specific member, and that the new 1959 enactment limited all disability resulting from an injury to a member
It is not disputed that the claimed impairment to the claimant‘s body as a whole (the compensation neurosis) resulted solely from the injury to the second scheduled member (the right eye), and that there was no injury to any other part of his body. (For the distinction between “compensation neurosis” and “traumatic neurosis” see the dissent in Ross v. Sayers Well Servicing Co., 76 N.M. 321, 414 P.2d 679.) The trial court, by an amended finding of fact, specifically found:
“3. That the injury to plaintiff‘s right eye resulted from a piece of metal becoming lodged in the right eye, and on that date, namely February 10, 1964, plaintiff did not suffer any other physical injury to any other part of his body or any other emotional or mental injury affecting his body as a whole; and that it was not until sometime after the accident when the sight in plaintiff‘s right eye was materially affected and diminished, that the emotional instability and depression reaction followed because of the loss of the functional ability to get around; the worry about blindness; and the worry about financial obligations.”
The mere statement by the majority, that the scheduled-loss provision of the act was not intended to prevent a larger recovery where a part of the body, in addition to the injured member “is affected as a result of the accident and injury to the scheduled member,” completely ignores the express and unequivocal language of the legislature saying that all disability resulting from the injury is limited to the amount provided for loss or loss of use of the specific member. The majority have thus judicially repealed the term “resulting from,” as essential part of the legislative act.
It is true that Salome v. Eidal Mfg. Co., 75 N.M. 354, 404 P.2d 308; Jensen v. United Perlite Corp., 76 N.M. 384, 415 P.2d 356; and Casados v. Montgomery Ward & Co., 78 N.M. 392, 432 P.2d 103, concerned impairment to other parts of the body resulting from injuries to specific body members, but apparently the language of the 1959 enactment and its difference from that of the prior repealed statute was neither called to this court‘s attention nor noticed by the court. In view of the fact that the changed language above pointed out, in the present statute was not noticed nor interpreted, those decisions do not support the construction given to the 1959 statute by the majority.
The injury here was the loss of use of the workman‘s second eye, or the loss of the use of a second specific member. We have not heretofore had occasion to construe the second or successive injury of the workmen‘s compensation law. The statute, in this respect, deals with successive disabilities or the successive-injury problem as it is related to loss of specific members. Absent an apportionment statute, the general rule is that the employer becomes liable for the entire disability resulting from a second or successive injury. 2 Larson, Workmen‘s Compensation, § 59.10. Larson, at the same section, says there are three approaches to the problem: “first, the ‘full responsibility’ rule * * * second, apportionment statutes, under which the employer pays only for the single member lost in his employment, and third, second-injury funds * * *.” New Mexico has adopted the apportionment method.
It is a matter of general knowledge that unrestricted application of the doctrine of liability of the employer for all impairment resulting from the second injury is deemed to discourage hiring of physically handicapped and disabled persons. See Subsequent Injuries Fund v. Industrial Accident Comm., 39 Cal. 2d 83, 244 P.2d 889; Leonard Rehabilitation, U. S. Dept. of Labor Bulletin 261; Workmen‘s Compensation Problems, 106; 111-112, 114 (1963). It seems clear to me that it was one of the goals of the New Mexico Legislature to encourage the hiring of physically handicapped and disabled persons by specifically limiting the employer‘s liability for successive injuries to specific members. The interpretation by
Applying the well-established rules of statutory construction to which this court is committed, it will be observed that the repealed statute (
It will be observed that the legislature, in writing the proviso contained in
Thus, both because the statute limits recovery for the loss of a second member in a second accident to the amount specified in the schedule for the loss of such member; and expressly provides that the amount specified in the schedule shall be the limit of recovery for all disability resulting from injury to the scheduled member, there can be no additional recovery for impairment to other parts of the body resulting solely from the loss of a second scheduled member. Any other construction would not only be directly contrary to the expressed limitation of the legislative enactment but would render the section concerning loss of a second member a nullity.
The trial court‘s finding 3 that the workman did not suffer any other physical, emotional or mental injury at the time of the accident, affecting his body as a whole, and that it was not until later that the loss of functional ability to get around, worry about blindness and financial obligations, resulted in the compensation neurosis, makes it abundantly clear that the neurosis resulted solely from the injury to the second specific member. Under those circumstances, the legislature expressly limited compensation to that provided in schedule A of
For the reasons stated, I must dissent from the opinion of the majority.