(dissenting).
I dissent and would allow the reopening of the judgment. I disagree that the motion to reopen the judgment is barred by the doctrine of res judicata. A liberal reading of the statute does not call for such a conclusion.
Section 52-1-56 A, N.M.S.A.1978, states in part:
“A. The district court in which any workman has been awarded compensation under the Workmen’s Compensation Act [52-1-1 to 52-1-69 N.M.S.A.1978] may, upon the application of the employer, workman or other person bound by the judgment, fix a time and place for hearing upon the issue of claimant’s recovery and if it shall appear upon such hearing that diminution or termination of disability has taken place, the court shall order diminution or termination of payments of compensation as the facts may warrant. And if it shall appear upon such hearing that the disability of the workman has become more aggravated or has increased without the fault of the workman, the court shall order an increase in the amount of compensation allowable as the facts may warrant. Hearings may not be held more frequently than at six-month intervals, . . . ”
Segura v. Jack Adams General Contractor, 64 N.M. 413, 329 P.2d 432 (1958) stated:
“In view of provisions of the applicable statute the ordinary rules of res judicata cannot apply to a judgment rendered on the merits after trial.”
Admittedly, the facts in Segura were different from the present case in that the judgment awarded compensation for a period in the future.
In Burton v. Jennings Brothers, 88 N.M. 95, 537 P.2d 703 (Ct.App.1975) a judgment was entered on June 12, 1973, providing for compensation to be paid for continued disability through August 24, 1973. In February, 1974; plaintiff’s motion for an increase in the compensation award was denied. This court reversed the trial court holding that a satisfaction of judgment did not bar a reopening under § 59-10-25, N.M.S.A. 1953, now § 52-1-56, supra.
The fact that in both Segura, and Burton the judgment provided for a future prediction of facts, whereas, in the instant case, the judgment was for an award in the past which did not involve a continuing disability past the time of the judgment does not change the situation. One of the few cases on this issue is Gant v. Price, 135 Kan. 333, 10 P.2d 1082 (1932). In Gant there was a finding that the claimant had been totally disabled for a number of weeks in the past, but had completely recovered before the date of the filing of the application for compensation. Subsequently, the claimant filed to reopen the judgment stating as one ground that the incapacity and disability had increased. In holding that the claimant was not entitled to a hearing, the Gant court stated:
“Here the commissioner of workmen’s compensation had found the facts to be that the disability of appellee had ceased before the first application was filed with the commissioner. This finding and award were appealed to the district court. The court approved the findings and award. When this was done the judgment of the district court took on all the attributes of finality that any case takes that is submitted to a district court for determination. The only remedy left is the appeal provided for to the supreme court.
“The reason for this is plain. When the commissioner of workmen’s compensation hears a case and makes a finding that extends into the future, he looks at an injured workman, hears the testimony of the doctors and finds what in his judgment will be the extent of his disabilities and how long the condition will last. The lawmakers knew this could not be determined with finality, so the provision for modification and review was written into the act. As far as the payments for the future are concerned this is a wise provision. The necessity for it does not exist, however, where the commission, and later the courts, are asked to look at a man and say what his condition is at the present time, and where this is done and a finding of fact is made not looking into the future at all, but establishing a present determinable fact. . . ”
I argue with Gant insofar as it relates to the period of time up to the date of the judgment. That is, the contested issue of disability up through judgment was decided. Compare City of Santa Fe v. Velarde, 90 N.M. 444, 564 P.2d 1326 (1977). However, this does not fully answer the question of the time remaining of the original 500 weeks after the date of judgment. It cannot be said that that period has been litigated and, since it was not litigated, it cannot be res judicata. The trial court was not looking into the future, but was only establishing a determinable fact as of the date of the judgment.
Consistent with this philosophy, our Supreme Court stated in Churchill v. City of Albuquerque, 66 N.M. 325, 347 P.2d 752 (1959):
“There is no longer any question in this jurisdiction but that a judgment such as here involved is not final until the full statutory period of 550 weeks has elapsed.”
See also Martinez v. Earth Resources Co., 90 N.M. 590, 566 P.2d 838 (Ct.App.1977). There are, of course, certain exceptions to the rule which are not applicable in the instant case. See, for example, Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964).
The reasoning behind the allowing of a reopening is sound. The state of the medical arts is such that a reoccurrence of disability or relapse can happen in many instances. Given this possibility of relapse and consistent with the liberal construction policy of the Workmen’s Compensation Act, I would hold that ány attempt of relitigation of the period prior to judgment is barred by the doctrine of res judicata, but that the judgment may be reopened for the statutory period remaining after judgment.
Accordingly, I respectfully dissent.