Romero v. S. S. Kresge Co.
| Citation | 95 N.M. 484,623 P.2d 998,1981 NMCA 1 |
| Decision Date | 06 January 1981 |
| Docket Number | No. 4607,K-M,4607 |
| Parties | Bessie ROMERO, Plaintiff-Appellee, v. S. S. KRESGE COMPANY dbaart Corporation, Employer, Self-Insuree, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This workmen's compensation action arises out of an injury which occurred while claimant, Bessie Romero, was employed by S. S. Kresge, d/b/a K-Mart Corporation (K-Mart). After completing her day of work, claimant punched-out on the employer's timeclock. While exiting the store, she slipped and fell in the vestibule between the inner and outer doors of the store. The only testimony as to the cause of the fall was that of claimant, who stated:
Well, I was walking out of the building. The (K-Mart) have one of their openings there, where you open the door, and all of a sudden I just fell on my seat, and I don't know what happened. I fell. I must have slipped on something. I don't know. I got up real fast from there.
As a result of the fall, Ms. Romero was injured. K-Mart, a self-insured employer, paid medical expenses and compensation benefits of $76.00 per week for twenty-five weeks and two days.
The trial court found that "(o)n or about October 20, 1978, plaintiff sustained an accidental injury arising out of and in the course of her employment," and entered a judgment directing that claimant be paid "thirty percent partial disability benefits."
The employer raises two issues on appeal. First, when an employee is injured "going or coming" to the workplace, while actually still in the workplace, that injury is not compensable under § 52-1-19, N.M.S.A.1978. Second, where a claimant's injury is not compensable under the applicable statute the payment of compensation benefits does not constitute an absolute admission that the injury which is the subject matter of the payment is compensable.
Claimant contends that, "plaintiff's claim for compensation was established prior to trial in defendant's answer to the complaint. This proof of the compensability arose because "defendant readily admitted in its answer that plaintiff had been paid weekly compensation benefits in addition to medical expenses for injuries sustained." Thus, argues claimant, since liability is admitted by payment of maximum compensation benefits, compensability was not properly an issue before the trial court.
Under the Workmen's Compensation Act (§§ 52-1-1, et seq. N.M.S.A.1978), an injury is compensable only if it is shown to be both "arising out of" and "in the course of" employment, Gutierrez v. Artesia Public Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978). However, compensation is not allowed if the injury occurs while the workman is "on his way to assume the duties of his employment" or "after leaving such duties." § 52-1-9. The only exception to the "going and coming" rule applicable here arises when the injury occurs on the employer's premises and there is proof of the employer's negligence. McDonald v. Artesia General Hospital, 73 N.M. 188, 386 P.2d 708 (1963); Hayes v. Ampex Corporation, 85 N.M. 444, 512 P.2d 1280 (Ct.App.1973); see Mountain States Tel. & Tel. Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978). In this action, claimant did not dispute the fact that she was finished with her work, nor did she assert that her injury was definitely the consequence of K-Mart's negligence. It is not possible, therefore, to find support for the court's Conclusion No. 2, that "Plaintiff sustained a compensable accidental injury arising out of and in the course of her employment," unless the payment of compensation benefits shifts the burden of proving that an accident arose out of the employment from the claimant to the employer.
Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966), held that while payment by the employer "may constitute an admission against interest by the employer or insurer, * * * the admission is only one factor to be considered together with the other evidence. Thus, absent any other evidence, proof of compensation benefits would be sufficient to sustain an award. Accord, Feldhut v. Latham, 60 N.M. 87, 287 P.2d 615 (1955), where the court earlier established that payment was competent, but was no more than evidence creating no shifting of the initial burden. In Armijo v. Co-Con Construction Co., 92 N.M. 295, 587 P.2d 442 (Ct.App.1978), it was noted again that:
(t)he voluntary payment of * * * benefits over a period of time * * * is not an admission by the employer of the totality of permanency of any injury. The employer may at any time discontinue payments and the onus would then be on the employee to establish the permanency and totality of his injury. (Emphasis added.)
The only decision in which such payments were not treated merely as evidence was Perea v. Gorby, 94 N.M. 325, 610 P.2d 212 (Ct.App.1980), where it was stated that such payments are, "an admission equivalent to an award of compensation benefits," the payment of which "relieved plaintiff of the burden of establishing any causal connection." These pronouncements are both contrary to the prior decisions of this Court and the Supreme Court and contrary to public policy. We held in Casias v. The Zia Co., 94 N.M. 723, 616 P.2d 436 (1980), that a decision which is concurred in by less than two judges is, "not a decision of the Court of Appeals." In the Perea decision, Judges Lopez and Hernandez concurred only in the result. Thus, that decision has no effect in this action. The rule of law from Michael v. Bauman, supra, and Armijo v. Co-Con Construction Co., supra, is clear voluntary payment of compensation benefits is merely competent evidence as to any issue in a workman's compensation suit, and does not create any presumptions or shifts in the original burden.
Clearly, then, claimant cannot base her recovery solely on the fact that the employer paid benefits during a period when the accident was under investigation. Rather, she had the burden of proving a compensable accident. The payment of compensation benefits does not relieve her of this burden. Any other rule would be contrary to the purpose and policy of the Workmen's Compensation Act. A rule of law holding that any payment of compensation benefits is an absolute admission of liability would defeat the remedial nature of the Act by encouraging employers to refuse payment of compensation benefits they might, otherwise, voluntarily pay.
A decision of the trial court is to be upheld if correct for any reason and is not to be reversed when the court reaches the correct result for the wrong reason. H. T. Coker Const. Co. v. Whitfield Transp., Inc., 85 N.M. 802, 518 P.2d 782 (Ct.App.1974). Thus, even though the wrong rule of law was applied in this action, if the result is correct, this Court will uphold that result. Here, claimant's testimony is the only evidence which has a bearing on the cause of the accident. If her statement will support the trial court's finding that her injury arose out of and in the course of her employment, the finding shall not be disturbed. Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493 (Ct.App.1977). In reviewing a workmen's compensation case, we will consider the evidence, and the inferences that may be drawn reasonably therefrom, in the light most favorable to support the findings. Moorhead v. Gray Ranch Co., supra; Gallegos v. Duke City Lumber Co., Inc., 87 N.M. 404, 534 P.2d 1116 (Ct.App.1975). In this case, upon a consideration of all the evidence, in the light most favorable to the successful party, the employee, we are convinced that there is no substantial evidence to support the finding of the district court that claimant "sustained an accidental injury arising out of and in the course of her employment * * * " Since this finding is essential to the judgment entered in favor of Ms. Romero, that judgment cannot stand. Accord, Getz v. Equitable Life Assur. Soc. of U. S., 90 N.M. 195, 561 P.2d 468 (1977).
The judgment of the district court is reversed, and this cause is remanded to that court with directions to enter judgment for K-Mart.
IT IS SO ORDERED.
In Perea v. Gorby, 94 N.M. 325, 610 P.2d 212, 216 (Ct.App.1980), I said:
Voluntary payments (of workmen's compensation benefits) are, however, an admission equivalent to an award of compensation benefits under § 52-1-28(A), and paid by defendants to plaintiff * * *
Despite Judge Andrews' opinion, I stand on that statement.
A "voluntary payment" is a payment made without a mistake of fact or fraud, duress, coercion, or extortion, on a demand which is not enforceable against a payor, and whether in a given case a payment is voluntary depends on the facts of the particular case, as indicating an intention on the part of payor to waive his legal rights. Sturdevant v. Mills, Mont., 580 P.2d 923 (1978).
"Equivalent to an award of compensation benefits" means similar to a court making an award of compensation.
An employer, when notified of an alleged accidental injury, is not compelled to pay a workman any compensation benefits. The employer can thoroughly investigate the claim, gather all of the essential facts and, within thirty days after knowledge of the accident, report the accident to the insurance department of the State Corporation Commission. Section 52-1-57, N.M.S.A.1978. It would be quite unusual, even rare that time in excess of thirty days would be necessary to determine the issue of liability. An employer or insurance carrier can then admit or deny liability. If compensation benefits are paid, liability is admitted. If there is uncertainty as to liability, an employer can, if it desires, pay compensation benefits under a reservation of rights. If the employer voluntarily makes...
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