Vaughn v. United Nuclear Corp.

Citation1982 NMCA 88,98 N.M. 481,650 P.2d 3
Decision Date06 May 1982
Docket NumberNo. 5260,5260
PartiesTommy VAUGHN, Plaintiff-Appellee v. UNITED NUCLEAR CORPORATION, and The Travelers Insurance Co., Defendants-Appellees and Vicente B. Jasso, State Superintendent of Insurance, and The New Mexico Subsequent Injury Fund, Defendants-Appellants.
CourtCourt of Appeals of New Mexico

Page 3

650 P.2d 3
98 N.M. 481
Tommy VAUGHN, Plaintiff-Appellee
UNITED NUCLEAR CORPORATION, and The Travelers Insurance Co.,
Vicente B. Jasso, State Superintendent of Insurance, and The
New Mexico Subsequent Injury Fund,
No. 5260.
Court of Appeals of New Mexico.
May 6, 1982.
Certiorari Quashed Aug. 31, 1982.

[98 NM 483]

Page 5

Michael Vigil, Albuquerque, for defendants-appellants.

Richard T. Mosher, Jr., John R. Tiwald, Albuquerque, for plaintiff-appellee.

Gregory W. Chase, Alice Tomlinsen-Lorenz, Albuquerque, for defendants-appellees.



The State Superintendent of Insurance, Vicente Jasso, on behalf of the Subsequent Injury Fund, (Fund) appeals a judgment of the trial court that adjudicated the Fund liable for 50% of a workman's compensation award. The court found plaintiff totally and permanently disabled and ordered the Fund to pay one-half of the total benefits, costs, medical expenses, rehabilitation services and attorney's fees. 1 We affirm, except as to the portion of the award that ordered payment from the Fund for the first eight weeks of disability.

We are called upon to determine the procedural and statutory requirements of a claim against the Subsequent Injury Fund for partial payment of an award to a handicapped workman who suffers a second work-related disability. The superintendent asserts three claims of error: (1) whether a claim against the Second Injury Fund may be asserted if a certificate of pre-existing physical impairment is not executed or filed prior to the occurrence of a subsequent injury; (2) whether the evidence supports the court's determination that the Second Injury Fund is liable for part of plaintiff's injury; and (3) whether the court correctly concluded that the Second Injury Fund is liable for the payment of one-half of the first eight weeks of disability, and for a proportionate share of medical expenses, costs, rehabilitation expenses, and attorney's fees.

Plaintiff was an employee of United Nuclear Corporation (UNC) at it's St. Anthony mine near Grants, New Mexico. On March 30, 1978, he suffered an injury to his lower back while working as an underground miner. As a result of the injury, plaintiff underwent a laminectomy to relieve problems from a ruptured disc. Plaintiff settled his claim with UNC on the basis of a 10% permanent disability, and in early September, 1978, he returned to work with the same employer as an ore prober.

Due to continued discomfort in performing work as a prober, plaintiff requested reassignment. The employer agreed and shifted plaintiff to driving a truck until November 2, 1978 when he was again ordered to work as a prober. While performing his duties, plaintiff twisted and fell, wrenching his back. Plaintiff was again hospitalized. Following release from the hospital, plaintiff was diagnosed as suffering from chronic low-back strain syndrome with psychogenic components.

Plaintiff filed suit against UNC and Traveler's Insurance Company, (appellees) on December 20, 1978, seeking compensation benefits as a result of the November injury. After plaintiff's case had been pending for more than a year, plaintiff filed a first amended complaint, joining the Fund as a party defendant. The Fund moved to dismiss the amended complaint on grounds that plaintiff had failed to allege compliance with § 52-2-6, N.M.S.A.1978, which requires the filing of a certificate of pre-existing physical impairment with the Superintendent of Insurance. In fact, defendant, UNC although aware of plaintiff's initial injury in March, 1978, had authorized plaintiff to return to work and did not require plaintiff to execute the certificate. The trial court denied the motion to dismiss and granted plaintiff leave to file a Second Amended Complaint with the certificate attached to it.

Plaintiff filed a Second Amended Complaint, incorporating a certificate executed on November 10, 1980. Following trial, the court made findings of fact, conclusions of law, and entered final judgment in favor of plaintiff. It determined that plaintiff's accident on November 2, 1978, aggravated his [98 NM 484]

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prior back injury of March 30, 1978, which together produced a psychological condition totally and permanently disabling him. The court ordered defendant UNC and the Fund each to pay 50% of all compensation benefits to which plaintiff was entitled, including medical expenses, vocational rehabilitation services, attorney's fees and costs. This appeal concerns only the court's apportionment of liability between the Fund and UNC.

1) Timeliness of Filing

The Fund first contends that failure of plaintiff and UNC to timely file a certificate with the superintendent's office prior to occurrence of the second injury precludes any recovery against the Fund.

The statutory provisions which govern the execution and filing of certificates are set out in §§ 52-2-5 and 52-2-6, N.M.S.A.1978. Section 52-2-5(C) provides in applicable part:

C. * * * In cases of persons who have begun a new employment after January 1, 1962, no judgment authorizing disbursement from said fund shall be entered unless the person claiming permanent physical impairment has given written notice to the employer of the nature and extent of such prior physical impairment prior to beginning his employment by his execution of the certificate required by Section 8 of the Subsequent Injury Act. (Emphasis supplied.)

Section 52-2-6, N.M.S.A.1978, provides:

A. Any worker may at any time file, and any employer may require a workman, as a condition of employment or continued employment, to file with the superintendent of insurance, a certificate of preexisting physical impairment.

B. Said certificate shall set forth the nature of the impairment, expressed both as a description of the impairment, and as a percentage of disability as defined in the Workmen's Compensation Act; it shall be signed and acknowledged by the workman and a physician duly licensed to practice medicine in the State of New Mexico. The certificate shall state whether the preexisting impairment was caused by accidental injury.

C. In the event any workman suffers compensable injury as defined by the Workmen's Compensation Act, said certificate shall have the effect of limiting the employer's liability under the Workmen's Compensation Act to that disability attributable to the current injury.

D. In the event the certificate of preexisting physical impairment certifies that the impairment was the result of an accidental injury, the Subsequent Injury Act shall be applicable to any disability arising out of accident or occurrence taking place after the date a certificate is executed. (Emphasis supplied.)

Interpretation of filing requirements of the Subsequent Injury Act is a matter of first impression. Appellant argues that Subsection D of § 52-2-6, supra, states that it applies only to disability arising after execution of a certificate. Therefore, execution of a certificate prior to a subsequent injury is mandatory. Since the certificate in this case was executed and filed after the occurrence of the disability and after the filing of plaintiff's suit, the Fund claims that the employer's failure to timely file exonerates the Fund under the act.

On the other hand, appellees draw an analogy between the Subsequent Injury Act and § 52-1-41, N.M.S.A.1978, of the Workmen's Compensation Act. It requires the filing of proof that the employer has met the Act's insurance requirements within 30 days of the establishment of an employment relationship. Under the Workmen's Compensation Act, failure to file indicia of insurance renders an employer subject to common law tort actions, but the courts have held that substantial compliance is sufficient. See, e.g., Baldwin v. Worley Mills, Inc., 95 N.M. 398, 622 P.2d 706 (Ct.App.1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981); Mirabal v. International Minerals & Chemical Corp., 77 N.M. 576, 425 P.2d 740 (1967). UNC contends that the same principle should apply to the execution and filing requirements for certificates under the Subsequent Injury Act, [98 NM 485]

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since the purpose of requiring certificates is to give notice.

UNC also urges that the language of § 52-2-6, supra, is ambiguous. It necessitates resort to statutory construction and interpretation to glean the true legislative intent of the Act's provisions relative to certificates.

We agree that the filing provisions of the statute are ambiguous.

Section 52-2-5(C), supra, states that for a judgment mandating Fund disbursement to be entered, the employee must give "written notice" to the employer of the pre-existing impairment before beginning work by "execution of the certificate required by Section 8" of the Act. There is no Section 8 of the current Act. The current § 52-2-6(A), supra, permits filing "at any time." Section 52-2-6(D) states that if a certificate certifies that the prior impairment was due to an accident, the Act applies to injuries occurring after the certificate is executed. From this conflicting and partially obsolete language alone, we cannot determine whether time specification of the Act's filing provisions are mandatory or merely directory.

Where ambiguity appears in statutory language, giving rise to several different interpretations, the court must resort to construction and interpretation thereof to ascertain legislative intent. Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1981). To do so, courts are not limited to consideration of isolated parts of an act, but are required to construe all parts thereof in pari materia, and must look to the legislative history of the enactment, its purposes, and its effect under the various constructions suggested. See New Mexico State Board of Education v. Board of Education of Alamogordo Public School District No. 1, 95 N.M. 588, 624 P.2d 530 (1981); Methola v. County of Eddy, supra.


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