Munoz v. Deming Truck Terminal
| Decision Date | 24 July 1990 |
| Docket Number | No. 11727,11727 |
| Citation | 797 P.2d 987,110 N.M. 537,1990 NMCA 84 |
| Parties | Juan MUNOZ, Claimant-Appellant, v. DEMING TRUCK TERMINAL and Travelers Insurance Company, Respondents-Appellees. |
| Court | Court of Appeals of New Mexico |
Claimant Juan Munoz, appeals from an order of a workers' compensation judge (WCJ) authorizing deductions to be made from a prior workers' compensation award received by him. We discuss: (1) whether the WCJ erred in permitting deductions from claimant's August 19, 1988 award of worker's compensation benefits; (2) whether the WCJ's findings are supported by substantial evidence; and (3) the WCJ's denial of attorney fees. We reverse and remand.
This workers' compensation action involves multiple successive disabilities and respondents' claim for reduction of benefits due to an alleged overlapping of benefits. Claimant injured his left knee on December 26, 1982, and negotiated a lump sum settlement, including payment of approximately $800 in attorney fees. The total amount of the settlement was $8,181.31, and included payment in lieu of 150 weeks of compensation benefits for future scheduled injury compensation. The following year, in September 1983, claimant suffered an injury to his right knee. On April 15, 1986, claimant sustained a third accident resulting in injuries to his back and right shoulder; the treating physician also testified that claimant's prior knee injuries had been aggravated by his continued work activities. As a result of the cumulative effect of each of these injuries, the WCJ found that claimant was totally and permanently disabled as of March 24, 1987.
The WCJ entered a compensation order on August 19, 1988, awarding claimant 600 weeks compensation beginning March 24, 1987, for total permanent disability resulting from his 1986 injuries and from aggravation of his prior knee injuries. On March 24, 1989, claimant sought a supplemental order contending that respondents were in default in making payments under the 1988 award in the amount of $5,138.09. See NMSA 1978, Sec. 52-5-10 (Cum.Supp.1986). On April 1, 1989, respondents moved to reduce the 1988 award, contending that the WCJ should reduce the 1988 award because benefits already provided by respondents on account of the 1982 and 1983 injuries purportedly overlapped payments authorized under the 1988 award.
Following a hearing on both motions, the WCJ granted respondents' request for reduction of the total benefits payable to claimant under the 1988 award and denied claimant's motion for issuance of a supplemental order. At the hearing on the motions, both parties relied primarily upon affidavits submitted by them and upon arguments of counsel. No testimony or documentary exhibits were formally offered at the hearing. In implementing its ruling that a deduction should be allowed, the WCJ reduced claimant's 1988 award by directing that the number of weeks of compensation payable to claimant be reduced from 600 to 493 weeks. The net dollar reduction in claimant's award totalled $10,129.69.
Claimant challenges the order of the WCJ authorizing a deduction to respondents from the 1988 compensation award, contending that there was no overlap of payments made as a result of his two prior knee injuries because the impairments and resulting disabilities resulting from his three injuries were separate and distinct.
Respondents argue that the deduction was proper because the injuries and resulting disabilities stemming from the 1982, 1983, and 1988 compensation awards related to claimant's same "whole body function" and that each of the three injuries constituted a reinjury to the same "body function" as contemplated by NMSA 1978, Section 52-1-47(D) (Cum.Supp.1986). Respondents argue that the total of all prior awards for compensation received by claimant should be deducted from the 1988 award pursuant to Section 52-1-47, as a matter of law. Thus, respondents argue that the WCJ properly applied the latter statute so as to reduce the 1988 award because of overlapping benefits.
On appeal claimant disputes the applicability of Section 52-1-47(D) to his 1988 600-week award and also contends that the scheduled injury statute, NMSA 1978, Section 52-1-43 (Cum.Supp.1986), militates against construing Section 52-1-47(D) as argued by respondents.
Section 52-1-47(D), provides as follows:
[T]he compensation benefits payable by reason of disability caused by accidental injury shall be reduced by the compensation benefits paid or payable on account of any prior injury suffered by the workman if compensation benefits in both instances are for injury to the same member or function, or different parts of the same member or function, or for disfigurement, and if the compensation benefits payable on account of the subsequent injury would, in whole or in part, duplicate the benefits paid or payable on account of such prior injury.
We assume, without deciding, that claimant's benefits for permanent total disability were for injury to the same member or function, or for different parts of the same members or functions, as benefits received for the 1982 and 1983 injuries. Nevertheless, as discussed hereafter, we determine that respondents have failed to establish that they are entitled to a deduction under Section 52-1-47(D) because of a failure of proof. Respondents also note that under Section 52-1-47(A) and (B) no combination of disabilities can exceed the statutory compensation period. Yet respondents neither make a legal argument nor point to evidence in the record that would entitle them to an offset pursuant to those provisions, so we need not consider that possibility.
Claimant argues that even if the WCJ appropriately considered whether an offset was proper under Section 52-1-47(D), nevertheless the evidence was insufficient to permit a reduction of benefits because respondents failed to present sufficient evidence at the motions hearing to permit the WCJ to properly compute the amount of any deduction or establish that respondents were entitled to a deduction under the criteria enunciated in Lea County Good Samaritan Village v. Wojcik, 108 N.M. 76, 766 P.2d 920 (Ct.App.1988). We agree.
Respondents have the burden of persuasion on the issue of whether an offset or deduction is appropriate, including the burden of presenting evidence of (1) the extent and nature of the worker's prior disability or disabilities; (2) the amounts of any previous awards and the amounts designated as compensation benefits; (3) the number of weeks of compensation benefits which were payable under prior awards or settlements; and (4) the extent to which payments for the last injury will duplicate payments previously made to the worker for the same bodily member or function. See id.; see also Cano v. Smith's Food King, 109 N.M. 50, 781 P.2d 322 (Ct.App.1989).
When reviewing the findings of the WCJ, we look at the record as a whole. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). Under this standard we examine all of the evidence, including evidence which 'fairly detracts' from the administrative findings, as well as that evidence which supports the judgment below. Id. at 129, 767 P.2d at 368 (quoting Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). Claimant argues that there was no competent evidence to support the WCJ's findings authorizing an offset and that administrative decisions must be supported by a residuum of evidence which would be properly admissible at a jury trial. See Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd., 101 N.M. 291, 681 P.2d 717 (1984); Young v. Board of Pharmacy, 81 N.M. 5, 462 P.2d 139 (1969). We understand respondents' contention to be that there is evidence that payments made on account of claimant's 1982 and 1983 injuries, duplicated, in part, disability benefits paid or payable after March 24, 1987. We review the pertinent evidence in light of this contention.
At the hearing on claimant's motion for issuance of a supplemental order and respondents' motion for a reduction of the 1988 award, both parties relied upon affidavits and arguments of counsel. Except for the amended affidavit of claimant, which contained an attached letter from The Travelers Insurance Company referring to the terms of the settlement with respect to the 1982 accident, the contents of the other affidavits submitted by the parties were controverted. Neither party requested the WCJ to take official notice of specific matters, called any witnesses, nor offered any testimony by deposition at the hearing. No documentary evidence was offered or received into evidence. Under this state of the record, was there sufficient evidence presented at the hearing to support the WCJ's finding and order allowing respondents offsets against the 1988 award? We conclude that there was not.
The evidence presented by respondents at the hearing on its motion for reduction pertaining to the 1982 award, consisted of an affidavit by respondents' former attorney. The affidavit stated that claimant was allocated under the 1982 settlement "five and one-half weeks of temporary total disability compensation and 150 weeks of scheduled injury compensation rights, [and the parties] agreed to settle his claim for a lump sum settlement of $8,131.31, plus $818.13 for attorney fees." Also, an affidavit submitted by claimant at the motion hearing incorporated a letter from The Travelers Insurance Company indicating that respondents' insurance carrier intended the benefits for the 1982 award to include 150 weeks of future wage loss compensation. Claimant argues that the document referring to the letter...
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