Rader v. Don J. Cummings Co., Inc.
| Decision Date | 19 September 1989 |
| Docket Number | No. 10920,10920 |
| Citation | 784 P.2d 38,109 N.M. 219,1989 NMCA 79 |
| Parties | Wallace RADER, Plaintiff-Appellee, v. DON J. CUMMINGS COMPANY, INC., a New Mexico Corporation, and Fireman's Fund Insurance Company, Defendants-Appellants, v. Fabian CHAVEZ, State Superintendent of Insurance, and the New Mexico Subsequent Injury Fund, Third-Party Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
This court's opinion filed August 31, 1989, is withdrawn and the following substituted therefor.
Plaintiff Wallace Rader sued his employer, Don J. Cummings Company, Inc., and its insurance carrier, Fireman's Fund Insurance Company (hereinafter collectively referred to as "employer"), under the Workmen's Compensation Act, NMSA 1978, Sections 52-1-1 to -69 (Orig. Pamp.), and the Occupational Disease Disablement Law, NMSA 1978, Sections 52-3-1 to -59 (Orig. Pamp.), for benefits allegedly resulting when Rader became totally and permanently disabled February 7, 1986. Employer later impleaded the New Mexico Subsequent Injury Fund (SIF), seeking apportionment of any award in favor of Rader. From a judgment awarding Rader total permanent disability and apportioning liability for benefits, attorney fees, and costs, 22% to employer and 78% to SIF, employer and SIF appeal.
Employer's appeal challenges the award of Rader's attorney fees. SIF's appeal seeks to avoid apportionment of any liability to it, based on: (1) a claimed deficiency in the certificate of preexisting disability; (2) a lack of proof of any preexisting impairment which disabled Rader from work or constituted an obstacle to continued employment; (3) a claimed failure of proof to establish apportionment; (4) a claim that benefits, if any, are exclusively payable under the Occupational Disease Disablement Law; and (5) a claim that employer is not entitled to reimbursement for Rader's attorney fees, absent proof that SIF benefited from such fees. We affirm on all issues except apportionment as between employer and SIF.
The trial court found that Rader worked for employer from 1963 until February 7, 1986, when he became totally and permanently disabled. All parties agree that Rader was totally and permanently disabled from and after that date. The trial court further found that, while working for employer, Rader was exposed on a daily basis to asbestos dust, dust from insulation, dust created by welding, and other pollutants, which, over time, caused accidental injuries to his lungs, resulting in an accidental injury in February 1986, for which employer was liable under the Workmen's Compensation Act.
On the second day of trial, Rader and employer entered into a stipulation essentially resolving all issues between them, except the defense of the statute of limitations. The trial court found against employer on that issue; employer does not appeal that issue. Thus, the issues between Rader and employer have been resolved, except for the issue of attorney fees.
SIF claims that the certificate of preexisting physical impairment filed with the superintendent of insurance fails to meet the requirements of Section 52-2-6 of the Subsequent Injury Act, NMSA 1978, Secs. 52-2-1 to -13 (Orig. Pamp. & Cum.Supp.1986) (Interim Act), in several respects. First, SIF says that the certificate, while describing the nature of the preexisting impairment, fails to express it as a percentage as required by Section 52-2-6(B). Second, Rader refused to sign the certificate; moreover, he was no longer employed when the certificate was prepared and filed, and therefore could not be made to sign. Sec. 52-2-6(A). Third, SIF claims that the certificate was not timely filed.
In making its argument under this subpoint, SIF relies on two provisions of the Interim Act: 1986 N.M. Laws, ch. 57, Section 3 (codified as Section 52-2-6), and 1986 N.M. Laws, ch. 22, Section 46 (codified as Section 52-2-3). Section 52-2-6(B) requires that the certificate shall set forth the nature of the impairment "both as a description of the impairment and as a percentage of the permanent physical impairment of the body as a whole." Under Section 52-2-3(A) of the Interim Act, "permanent physical impairment" means
any permanent physical defect, due to a previous accident or disease or due to any congenital condition, which is capable of being expressed in percentage terms as determined by medically or scientifically demonstrable findings as presented in the American medical association's guides to the evaluation of permanent impairment, copyright 1984, 1977 or 1971, or comparable publications by the American medical association.
Because Dr. Gorman, who signed the certificate, could not express Rader's impairment in terms required by those provisions, SIF claims the certificate was defective, and therefore, under Section 52-2-6(D) of the Interim Act, that act does not apply and SIF is not liable. Dr. Gorman expressed Rader's "percentage of disability" as "[p]atient's useful working life will end at age 67."
We need not decide whether the certificate substantially satisfies the requirements of the Interim Act provisions relied upon by SIF. The Interim Act does not apply to this claim. 1986 N.M. Laws, chapter 22, section 101 states, "The provisions of Sections ... 46 [52-2-3] ... of this act shall apply to injuries ... occurring ... on or after the effective date of those sections." This section of the act contained no effective date, but pursuant to N.M. Const. article IV, section 23, the section was effective on May 21, 1986. The 1986 amendment to Section 52-2-6 also contained no effective date, see 1986 N.M. Laws, ch. 57, and therefore the amendment was effective on May 21, 1986.
In this case, Rader became totally and permanently disabled on February 7, 1986, almost three months before the effective dates of the Interim Act provisions relied on by SIF. In Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 760 P.2d 793 (Ct.App.1988), we held that the date the injury becomes compensable, rather than the date of accident, controls as to which statute governs the claim. In the case before us, the date that the injury manifested itself, February 7, 1986, and the date that Rader became disabled, are the same. Thus, the original Subsequent Injury Act applies. Secs. 52-2-1 through -13 (Orig. Pamp.).
Since SIF makes no argument under the provisions of the original Subsequent Injury Act, we need not address the question further.
The claimed defects based on Rader's failure or refusal to sign the certificate and the late filing can also be summarily answered. Employer, in its brief, states that Rader refused to sign the certificate unless employer would agree it was 100% liable for the compensation benefits as a result of the subsequent injury, and that this was explained in a letter to the superintendent of insurance that accompanied the certificate. On those facts, we believe that the certificate substantially complies with the purposes of the statute. The purposes of the Subsequent Injury Act, as discussed in Vaughn v. United Nuclear Corp., 98 N.M. 481, 650 P.2d 3 (Ct.App.1982), are to encourage employers to hire or to retain injured or impaired workers, and to document the nature and extent of their impairment. The purpose of encouraging employers to retain handicapped workers is satisfied where, as here, the employer had actual notice of the disability and retained the worker.
We recognize, however, that the purpose of documenting the impairment is minimally served, if at all, where the employer and the worker wait until long after the subsequent injury to document the preexisting impairment. Nevertheless, the supreme court in Fierro v. Stanley's Hardware, 104 N.M. 50, 716 P.2d 241 (1986), held that the certificate of preexisting physical impairment can validly be filed after the subsequent injury where the employer, before the subsequent injury, had actual knowledge of the employee's preexisting impairment. Subsequent to the supreme court decision in Fierro, the legislature in 1988 amended the requirements for filing a certificate of preexisting permanent physical impairment and now provide that the Subsequent Injury Act is only applicable to a disability "arising out of an accident or occurrence taking place after the date a certificate ... is executed and filed with the superintendent of insurance." See NMSA 1978, Sec. 52-2-6 (Supp.1988). Since we decide this issue under the law in effect when the injury manifested itself, we determine that in this case, there was evidence that employer did have knowledge of Rader's preexisting physical impairment. It was aware of Rader's breathing problems in the early 1970's. Employer purchased a breathing machine for Rader to help him breathe and stay productive.
Moreover, where an employer does have actual knowledge, we do not believe that it should be denied the opportunity of impleading SIF by the actions of the worker in refusing to sign the certificate, particularly where such refusal was apparently premised on an improper basis. Cf. City of Roswell v. Chavez, 108 N.M. 608, 775 P.2d 1325 (Ct.App.1989) ().
We reject SIF's arguments under this point.
As we understand SIF's argument,...
To continue reading
Request your trial
- State v. Cordova
-
Zoss v. United Bldg. Centers, Inc.
...Inc., the court held an occupational disease must be peculiar to a worker's occupation, not just to a particular workplace. 109 N.M. 219, 784 P.2d 38, 45 (App.1989), cert. denied, 109 N.M. 131, 782 P.2d 384 (1989). For similar holdings, see Jackson v. Risby Pallet & Lumber Co., 736 S.W.2d 5......
-
Gambrel v. Marriott Hotel
...of Section 52-2-6 will be met where the certificate "substantially complies" with the purposes of SIA. Rader v. Don J. Cummings Co., Inc., 109 N.M. 219, 784 P.2d 38 (Ct.App.1989). These purposes include hiring and retaining impaired and injured workers and documenting the nature and extent ......
-
State v. Haidle
... ... See Maralex Res., Inc. v. Gilbreath, 2003NMSC023, 13, 134 N.M. 308, 76 P.3d 626 ([A]n ... ...