Pies v. Bekins Van & Storage Co.
Decision Date | 14 August 1962 |
Docket Number | No. 7087,7087 |
Citation | 1962 NMSC 104,374 P.2d 122,70 N.M. 361 |
Parties | Jerome PIES, Claimant, Plaintiff-Appellant, v. BEKINS VAN AND STORAGE COMPANY, Inc., Employer, and Employees Mutual of Wausau, Insurer, Defendants-Appellees. |
Court | New Mexico Supreme Court |
Montoya & Shwartz, Albuquerque, for appellant.
Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Albuquerque, for appellees.
The issue in this case is identical with the one this day decided in Batte v. Stanley, Inc., N.Mex., 374 P.2d 124.
In that case the employer appealed from an allowance of 60% partial permanent disability where actual earnings showed at most a 17% reduction. We held that the amount of earnings was not conclusive as to earning ability or capacity, and that a judgment for a greater percentage of disability would be upheld if supported by proper findings based upon substantial evidence.
The instant case is an appeal by the employee from an allowance of 15% partial permanent disability where actual earnings showed a 30% reduction.
The rule announced in Batte is equally applicable here, and the result in this case must be the same as in that.
The court made the following pertinent findings touching on earning ability:
'2. That the Plaintiff worked for the Bekins Van and Storage Company, Inc. at an hourly wage of $1.52 per hour for approximately 10 hours per day or approximately $76.00 per week.
'5. Following the compensable accident of June 3, 1960 the plaintiff was temporarily totally disabled until September 3, 1960 or for approximately 13 weeks; was 50% temporarily partially disabled thereafter until December 3, 1960 for another approximate 13 weeks; and suffers a permanent partial disability of 15%.
'6. That the plaintiff has completed one year and one half year in general college.
'7. That the plaintiff has spent four years in the United States Navy as a hospital corpsman.
It is apparent that the facts found of $50.00 per week earnings, or $53.00 per week earnings would support a finding of 30% disability, under the formula of Sec. 59-10-18.3, N.M.S.A.1953, the earnings at time of the injury having been $76.00. However, in finding No. 13 earning capacity, as distinguished from earnings, is found to be $64.60...
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State v. Rhodes, 8225
...... Faubion v. Tucker, 58 N.M. 303, 270 P.2d 713; Gore v. Cone, 60 N.M. 29, 287 P.2d 229; Pies v. Bekins Van & Storage Co., 70 N.M. 361, 374 P.2d 122. Appellant argues his points ......
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...of full wages following injury is not conclusive on the question of earning ability, Batte v. Stanley's supra; Pies v. Bekins Van and Storage Co., 1962, 70 N.M. 361, 374 P.2d 122, it may be indicative, Breland v. Ceco Steel Products Corp., 1962, 173 Neb. 354, 113 N.W.2d 528; and 2 Larson's ......
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...v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381; Batte v. Stanley's, 70 N.M. 364, 374 P.2d 124, or Pies v. Bekins Van and Storage Company, 70 N.M. 361, 374 P.2d 122. Since it is conceded that the period of disability could not have exceeded 19 weeks, the total amount of the employer......