Duran v. Xerox Corp.

• Decision Date: 02 December 1986
• Docket Number: No. 9240,9240
• Citation: Duran v. Xerox Corp., 731 P.2d 973, 105 N.M. 277, 1986 NMCA 124 (N.M. App. 1986)
• Parties: Orlando DURAN, Plaintiff-Appellee, v. XEROX CORPORATION, employer, and Employees Insurance Company of Wausau, insurer, Defendants, and Vicente B. Jasso, Superintendent of Insurance of the State of New Mexico, and the New Mexico Subsequent Injury Fund, Defendants-Appellants. and XEROX CORPORATION, employer, and Employers Insurance Company of Wausau, insurer, Third-Party Plaintiffs-Appellees, v. Vicente B. JASSO, Superintendent of Insurance of the State of New Mexico, and the New Mexico Subsequent Injury Fund, Third-Party Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 973

731 P.2d 973

105 N.M. 277

Orlando DURAN, Plaintiff-Appellee, v. XEROX CORPORATION, employer, and Employees Insurance Company

of Wausau, insurer, Defendants,

and

Vicente B. Jasso, Superintendent of Insurance of the State

of New Mexico, and the New Mexico Subsequent

Injury Fund, Defendants-Appellants.

and

XEROX CORPORATION, employer, and Employers Insurance Company

of Wausau, insurer, Third-Party Plaintiffs-Appellees, v. Vicente B. JASSO, Superintendent of Insurance of the State

of New Mexico, and the New Mexico Subsequent

Injury Fund, Third-Party

Defendants-Appellants.

No. 9240.

Court of Appeals of New Mexico.

Dec. 2, 1986.

Certiorari Denied Jan. 26, 1987.

[105 NM 278] Gregory D. Huffaker, Jr., Poole, Tinnin & Martin, P.C., Albuquerque, for defendants-appellants New Mexico Subsequent Injury Fund and Superintendent of Insurance for the State of New Mexico.

James A. Mungle, James A. Mungle, P.A., Albuquerque, for plaintiff-appellee Orlando Duran.

Mark B. Thompson, III, Douglas R. Vadnais, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, for defendants/third-party plaintiffs-appellees Xerox Corporation and Employers Insurance Corporation of Wausau.

OPINION

MINZNER, Judge.

The Subsequent Injury Fund (Fund) appeals from judgments in favor of the employer and the worker, contending (1) that the worker's complaint against the Fund is barred because the certificate of preexisting physical impairment was executed as well as filed after the subsequent injury on which his complaint is based; (2) that, in any event, both the worker's and the employer's complaints against the Fund were time-barred; and (3) that neither the worker nor the employer may proceed against the Fund because they had entered a court-approved settlement prior to trial. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Doe, 99 N.M. 456, 659 P.2d 908 (Ct.App.1983). We affirm.

BACKGROUND.

The worker is forty-eight years old. He was employed as an electronic copier service technician by Xerox Corporation on May 4, 1983, when he suffered a work-related low back injury. He briefly returned to limited duty, but ultimately left work to have back surgery in August 1983. He has not returned to employment of any kind since that time.

He had experienced two prior low back injuries. One occurred in 1974, when he was working for another employer; as a result of that injury, he underwent surgical removal of two discs. He did not return to that job; rather, he obtained work with Xerox two years later. In 1981, he reinjured his low back, and again underwent surgery; Xerox re-employed the worker after he had been released for work.

The worker filed a complaint for worker's compensation against Xerox on April 23, 1984. At a deposition taken in June 1985, there was medical testimony that the worker "is now in the category of the failed back syndrome," "is unable to return to gainful employment of any type," and "has a permanent disability." The same doctor signed the certificate of preexisting physical impairment on December 12, 1985.

The worker filed an amended complaint naming the Fund as an additional defendant on January 11, 1985. The worker and Xerox filed a stipulation of settlement on January 22, 1985. Under the settlement, Xerox paid the worker $35,000 for disability, $6,000 for attorney fees, and $3,000 for medical expenses. The stipulation recited that the parties did not intend to limit any claim they had against the Fund. Xerox then filed a third-party complaint against the Fund.

The district court entered judgment approving the terms of the stipulated settlement and then tried the claims against the Fund. After trial, the court entered judgment in favor of the worker and in favor of Xerox, apportioning liability eighty percent to the Fund and twenty percent to Xerox. It directed that the Fund reimburse Xerox for that portion of Xerox's settlement in excess of the liability allocated to Xerox.

The Fund contends that the trial court erred in failing to dismiss the claims against it, relying on three general claims of error. We address one summarily, then discuss the other two separately. Each claim arises under the Subsequent Injury Act (SIA). See NMSA 1978, Sec. 52-2-1. The SIA was amended while this appeal was pending, see 1986 N.M.Laws, ch. 22, Secs. 45-52 and 102-103, and ch. 57, Secs. 1-3; this opinion refers to the SIA as it read prior to amendment.

First, the Fund contends that because the certificate of preexisting physical impairment was not timely, the Fund cannot be held liable. Relying on NMSA 1978, Section 52-2-6(D), the Fund argues that it cannot be liable because the worker's injury occurred prior to the date the certificate was executed. As the Fund acknowledges, however, in Vaughn v. United Nuclear Corp., 98 N.M. 481, 650 P.2d 3 (Ct.App.1982), this court held that Section 52-2-6(D) was inconsistent with Section 52-2-6(A), and construed the former to permit the certificate to be executed and filed after the second injury, as long as the employer had actual knowledge of the worker's preexisting disability.

The Fund asks us to draw a distinction between certificates executed after, as well as filed after, the second injury and certificates executed before, but filed after, the second injury. In view of the fact that the supreme court recently reaffirmed Vaughn, see Fierro v. Stanley's Hardware, 104 N.M. 50, 716 P.2d 241 (1986) (Fierro I ), we are bound by the supreme court's interpretation of Vaughn. We believe the distinction the Fund urges is not permitted under that interpretation.

WHETHER THE CLAIMS AGAINST THE FUND ARE TIME-BARRED.

The Fund argues that the claims against it are time-barred, because the worker's amended complaint joining the Fund and Xerox's third-party complaint against the Fund were filed more than a year after the injury. See NMSA 1978, Sec. 52-1-31(A); see also 1986 N.M.Laws, ch. 22, Secs. 8 and 103.

Section 52-1-31(A) states that "if the workman fails to file a claim for compensation within the time required by this section, his claim * * * [is] barred." (Emphasis added.) It clearly limits a worker's claim against his or her employer. Our cases have held that this limitation is jurisdictional. See Armijo v. United States Casualty Co., 67 N.M. 470, 357 P.2d 57 (1960).

The Fund cites NMSA 1978, Section 52-2-13 in support of their argument that the limitation also applies to claims against the Fund. Section 52-2-13 provides that "[t]he determination of the rights of an employee * * * under the provisions of this Subsequent Injury Act shall be made in the same manner as in cases arising under the Workmen's Compensation Act * * *." We understand this section to mean at least that procedures involved in claiming benefits under the SIA shall be followed as they are in workmen's compensation claims; however, this does not mean that every provision that applies to a claim against an employer for workmen's compensation is also applicable to subsequent injury claims. Rather, such a claim requires a comparison of the purposes of the SIA and the provision for which incorporation is urged. See Fierro v. Stanley's Hardware, 104 N.M. 411, 722 P.2d 662, 25 SBB 726 (Ct.App.1986) (Fierro II ) (construing NMSA 1978, Section 52-2-12 as not incorporating NMSA 1978, Section 52-1-43(D), repealed 1986 N.M.Laws, ch. 22, Sec. 13, into the SIA). In the absence of a clear indication of legislative intent, we have denied similar incorporation arguments. See Gutierrez v. City of Gallup, 102 N.M. 647, 699 P.2d 120 (Ct.App.1984) (rejecting the contention that either Section 52-2-12 or NMSA 1978, Section 52-2-13 incorporated NMSA 1978, Section 52-1-56(C), see 1986 N.M.Laws, ch. 22, Sec. 103).

The Fund admits that there is no specific period of limitations on an employer's rights against the Fund under the SIA, but urges this court to extend the jurisdictional requirement in Section 52-1-31(A) to claims for reimbursement by the employer against the Fund. Their argument is based on language in Section 52-2-13, which deals with rights of the employee. We are not persuaded that the legislature intended to impose such a condition precedent on the employer's right to recover against the Fund. Cf. Superintendent of Insurance v. Mountain States Mutual Casualty Co., 104 N.M. 605, 725 P.2d 581 (Ct.App.1986) (employer not a "claimant" under NMSA 1978, Section 52-1-54(C), see 1986 N.M.Laws, ch. 22, Sec. 103, for whom legislature intended to provide attorney fees).

The legislature has delineated several ways in which the employer may shift some portion of the liability for benefits to the Fund. See NMSA 1978, Sec. 52-2-5(A), (B), and (C); see also NMSA 1978, Sec. 52-2-11(D), (E), and (F). Under the SIA, the worker may join the Fund in applying for a judicial determination of compensation; the employer, having been sued, may implead the Fund, or the employer, having commenced to pay benefits, may seek declaratory relief.

The legislature has not provided a time bar in describing the employer's right to seek contribution from the Fund after voluntary payments. The Fund's argument, in our judgment, requires that we make a distinction between those situations in which a worker sues his or her employer and the Fund is joined, and the situation in which the employer seeks contribution, although the employer has not been sued. The Fund offers no policy reason for distinguishing these situations.

Further, under our cases, the employer need not raise by answer the issue of whether the worker has complied with the limitation imposed by Section 52-1-31(A). See Garza v. W.A. Jourdan, Inc., 91 N.M. 268, 572 P.2d 1276 (Ct.App.1977). It is not an affirmative defense waived by failure to raise it at an appropriate point. See id. Thus, the Fund's argument urges us to incorporate a prerequisite to recovery that is unique to the Workmen's Compensation Act. No policy reason for extending such...