Carter v. Mountain Bell

Decision Date07 October 1986
Docket NumberNo. 8738,8738
Citation105 N.M. 17,727 P.2d 956,1986 NMCA 103
PartiesGeraldine CARTER, Plaintiff-Appellant, v. MOUNTAIN BELL, Employer and Insurer, Defendant-Appellee.
CourtCourt of Appeals of New Mexico

ALARID, Judge.

Plaintiff Geraldine Carter appeals from a judgment awarding her compensation for a scheduled injury, and crediting defendant Mountain Bell with payments previously made to plaintiff under defendant's benefits plans. On appeal, plaintiff raises two issues. She first challenges the trial court's decision to give defendant credit. She next alleges that she should have been found to be totally disabled or, at least, to have suffered a separate and distinct impairment to the body as a whole, thereby allowing her to recover benefits for partial disability. The facts necessary for our discussion will be discussed as we analyze the legal issues raised by plaintiff in her appeal. We affirm the trial court on the credit issue and remand on the issue of scheduled versus non-scheduled injury.

I. Whether the trial court erred in granting defendant credit against worker's compensation benefits for monies paid under its accident and disability plans.

Defendant is self-insured. Since 1913, all Bell System companies have had benefit plans similar to the ones at issue in this case. See Southwestern Bell Telephone Co. v. Siegler, 240 Ark. 132, 398 S.W.2d 531 (1966).

Defendant has had a "Sickness and Accident Disability Benefit Plan." For sickness, defined as illness or off-the-job injury, the plan pays the employee full salary for a certain time, depending on the employee's longevity with the company, and then half-salary for the remainder of the time up to fifty-two weeks. Then, for sickness, the employee is eligible for benefits of half-salary for as long as the employee is disabled under another plan, the "Company's Long Term Disability Plan," administered by Mutual of Omaha. For accident defined as on-the-job accident, the "Sickness and Accident Disability Benefit Plan" pays the employee full salary for a certain time, again depending on the employee's longevity with the company, and then half-salary for as long as the employee remains disabled. Thus, the benefits are the same for sickness as for accident. The only difference is that for sickness, the long-term disability plan picks up the payments after one year, whereas, for accident, the "Sickness and Accident Disability Benefit Plan" pays all the benefits.

The sickness and accident plan provides that employees cannot get benefits for both sickness and accident at the same time. In addition:

In case any benefit, which the Committee shall determine to be of the same general character as a payment provided by the Plan, shall be payable under any law now in force or hereafter enacted to any employee of the Company, the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan; provided, however, that no benefit payable under this Plan shall be reduced by reason of any governmental benefit payable on account of military service or by reason of any benefit which the recipient would be entitled to receive under the Social Security Act.

The following testimony was given relating to this paragraph:

Q. Under paragraph 25, there was a committee referred to. What committee is this?

A. This is in our Corporate Benefit Office and the committee consists of managers of all departments.

Q. Do you know whether the committee has determined that the New Mexico worker's compensation payments are of the same general character as those paid under the Accident and Sickness Plan?

A. Yes.

Q. Ok. And this has been the position of the committee at all times from 1973 to the present time?

A. Yes.

The long-term disability plan specifically includes worker's compensation in the list of benefits which shall be deducted from the benefit paid by this plan.

The following facts are undisputed in this case: (1) plaintiff was injured in an on-the-job accident on January 10, 1983; (2) her salary at that time was $527.50 per week; (3) the compensation rate applicable to plaintiff was $271.76 per week; (4) plaintiff received $527.50 per week when she was unable to work due to the accident; (5) plaintiff went back to work and was downgraded in salary because of a change in position; when she went off work again because of disability related to the January 1983 accident, she was earning $382.50 per week; and (6) plaintiff received $382.50 during the time she was unable to work until her right to full salary under the plans was used up, then she began receiving $191.25 per week as half-salary under the plans. Defendant did neither ask for nor receive a dollar-for-dollar credit. It sought and received a week-for-week credit.

Thus, there are three time periods involved: (a) the time immediately after January 10, 1983, when plaintiff was receiving $527.50 from the plans; (b) the time immediately after she stopped working for the second time, when she was receiving $382.50 from the plans; and (c) the time when the plans only paid half-salary, during which plaintiff was receiving $191.25 from the plans. The way the court worked the credit was so that defendant did not have to pay compensation for the weeks in which plaintiff received either $527.50 or $382.50. Defendant received a credit of $170.62 per week against the $271.76 it owed plaintiff for the weeks it paid plaintiff half-salary pursuant to the plans. (The discrepancy between the credit given of $170.62 and defendant's allegation that half plaintiff's salary would have been $191.25 may be explained by the fact that defendant made a mistake in paying plaintiff benefits.)

Defendant does not believe that plaintiff should be able to get a double recovery of both worker's compensation plus benefits under the plans. Defendant contends that a ruling in plaintiff's favor would encourage it not to pay any benefits under the plans until plaintiff's right to worker's compensation is established. This would result in a period of hardship for plaintiffs, but would insure that defendant would not have to pay both company benefits and worker's compensation contrary to the language in the plans. Plaintiff contends that the Workmen's Compensation Act does not preclude such double recovery and that she should be entitled to get all benefits that both the plans and the law allow. Plaintiff also asserts that the language in the sickness and accident plan is not clear enough to warrant a conclusion that worker's compensation is to be deducted from the benefits under the plans.

Although both parties cited sections in Larson's and cases which support their respective positions, these authorities cannot be categorized into the majority and minority rules, thereby allowing this court to pick which rule it wants to follow. The reason the authorities cannot be categorized is that they rely on statutes peculiar to their jurisdictions or language in benefit plans peculiar to those plans or they decide the case on grounds not related to either statutory or benefit plan language.

4 A. Larson, The Law of Workmen's Compensation, Sections 97.51(a) and (c) (1986), states the rules as follows:

As to private pensions or health and accident insurance, whether provided by the employer, union, or the individual's own purchase, there is ordinarily no occasion for reduction of compensation benefits. * * *

* * *

* * *

Although avoidance of duplication cannot ordinarily be achieved under American statutes in these cases by, so to speak, trimming at the compensation end, it is frequently achieved by express language trimming at the private-plan end, that is, by reducing the private benefits by the amount of any compensation payments. Even when the language of the plan is not specific, a court may give the benefit of the doubt to a construction that will avoid overlapping payments. [Footnotes omitted.]

Plaintiff relies on the first paragraph of this quote and the cases cited in it. Defendant relies on the second paragraph and the cases cited in it. The problem with both parties' reliance is that the cases they cite are based, for the most part, on specific statutes. Defendant also relies on cases which concentrate on the language of the particular plan being considered. See Jones & Laughlin Steel Corp. v. Kilburne, 477 N.E.2d 345 (Ind.App.1985); Cole v. Armour & Co., 257 N.W.2d 381 (Minn.1977).

Yet, just as these cases concentrate so heavily on the plan language without regard to statutory considerations, there exists a case which concentrated on statutory language without regard to contractual considerations outlined in the plan language. In In re Gould's Case, 355 Mass. 66, 242 N.E.2d 748 (1968), the court was faced with a statute that prohibited the worker's compensation board from considering benefits derived from other sources. The court said that the board's simple function was to determine what benefits under the worker's compensation law the employee was to get, implying that it would be too hard, and contrary to the statutory language, to spend time interpreting the language in all the plans that could come before the board. Thus, in the absence of express statutory language allowing a set-off for private plans, the board could not consider them.

We should note that plaintiff does not rely on the Gould case and appears to concede that if the plan language precludes double recovery, then the trial court's judgment could be affirmed, subject to one other argument. Plaintiff argues that the testimony does not establish that the committee determined that New Mexico worker's compensation benefits are of the same general character as the plan benefits. She asserts that the testimony only shows that the witness knew...

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