Dingus v. Third Street Grocery

OPINION DENYING MOTIONS FOR REHEARING

This matter comes before us on Claimant’s Motion for Rehearing and a pleading by the New Mexico Workers’ Compensation Administration (WCA) entitled “Motion for Leave to File Brief as Amicus Curiae and for Rehearing.” We deny both motions for rehearing.

I. CLAIMANT’S MOTION

Claimant contends that we erred in holding that her award of an increased compensation rate was barred by the statute of limitations. Some of Claimant’s arguments in support of her contention were raised in her original answer brief and addressed in our opinion filed on March 21, 1994. We now discuss only matters that Claimant contends were overlooked in that opinion.

Claimant’s principal argument is that we have misconstrued NMSA 1978, Section 52-1-31(A) (Repl.Pamp.1991), by adding words to the provision. She asserts that our opinion improperly inserts in the language of Section 52-l-31(A) the words that are emphasized in the following passage:

If an employer or his insurer fails or refuses to pay a worker any exact installment of compensation to which the worker is entitled ... it is the duty of the worker insisting on the payment of compensation to file a claim ... not later than one year after the failure or refusal of the employer or insurer to pay exact compensation due.

We disagree. Both the dictionary and legal tradition support our interpretation.

The heart of Claimant’s argument is the implicit assertion that an employer or insurer “fails to pay” an installment of compensation only if it pays nothing whatsoever. But a “failure” to pay can be any insufficiency in the payment of what is due. A typical definition of “fail” includes: “1. to fall short of success or achievement in something expected, attempted, desired, or approved; ... 3. to be or become deficient or lacking; fall short; be insufficient or absent____” The Random House Dictionary of the English Language 510 (1971). Thus, an employer or insurer “fails” to pay an installment of compensation if the amount paid “falls short” of the amount due. Cf. In re Merritt’s Will, 171 Misc. 812, 14 N.Y.S.2d 103, 107 (Sur.Ct.1939) (failure of gift under a will); San Jacinto Oil Co. v. Ft. Worth Light & Power Co., 41 Tex.Civ.App. 293, 93 S.W. 173, 175-76 (1906) (failure of oil wells). The one-year limitations period for Claimant’s claim for increased compensation therefore began to run when Employer first paid less than the amount now claimed.

Moreover, Claimant’s construction of Section 52-l-31(A) would create a result at odds with the traditional legal principle that, subject to the discovery rule, the statute of limitations begins to run when the plaintiffs cause of action accrues. See Saiz v. Belen Sch. Dist., 113 N.M. 387, 401 n. 12, 827 P.2d 102, 116 n. 12 (1992); NMSA 1978, § 37-1-1 (Repl.Pamp.1990). We have no doubt that a worker’s cause of action accrues whenever the payments are less than the amount due. NMSA 1978, Section 52-5-18 (Repl. Pamp.1991), states that a worker receiving maximum compensation cannot file a claim, except for additional compensation arising from the employer’s failure to provide a safety device. Read together, Sections 52-1-31(A) and 52-5-18 imply that a worker receiving less than what is due can proceed with a claim under the Workers’ Compensation Act. See Rollins v. Albuquerque Pub. Sch., 92 N.M. 795, 797, 595 P.2d 765, 767 (Ct.App.) (“When maximum compensation benefits are refused or reduced, a workman can then file a claim for maximum compensation benefits[.]”), cert. denied, 92 N.M. 675, 593 P.2d 1078 (1979). Under the traditional principle, one would then expect the limitations period to begin when payments are less than the law requires. We see no reason to read Section 52-l-31(A) to provide otherwise. A worker receiving less than the amount due cannot wait until other claims ripen before filing. See Noland v. Young Drilling Co., 79 N.M. 444, 446-47, 444 P.2d 771, 773-74 (Ct.App.1968) (worker cannot disregard compensable injury and wait until permanent incapacity results therefrom before he is obliged to file his claim).

Claimant also contends that our decision is contrary to an earlier unpublished decision by this Court. We need not consider whether that decision should be distinguished or criticized. Unpublished opinions of this Court have no precedential value and should not be cited as authoritative in briefs to this Court. See SCRA 1986, 12-405(C); Vigil v. Martinez, 113 N.M. 714, 718, 832 P.2d 405, 409 (Ct.App.1992).

Finally, we have noted Claimant’s expressions of concern that our opinion will encourage misconduct by employers. Yet, in the present case the record does not indicate any inequitable behavior by Employer that would estop it from raising a statute-of-limitations defense to Claimant’s claim for additional compensation based on her employment by a second employer. As for future cases, we are confident that NMSA 1978, Section 52-1-36 (Repl.Pamp.1991), will be an effective tool to prevent any inequities arising from employer misconduct.

II. MOTION BY WORKERS’ COMPENSATION ADMINISTRATION

To begin with, we note that it is uncertain whether after an opinion has been filed one can seek amicus status and move for rehearing. Compare Green v. Biddle, 21 U.S. 1, 17-18, 5 L.Ed. 547 (1823) and San Diego Flume Co. v. Souther, 104 F. 706 (9th Cir.1900) with City of Denver v. Denver Tramway Corp., 23 F.2d 287, 295 (8th Cir.1927), cert. denied, 278 U.S. 616, 49 S.Ct. 20, 73 L.Ed. 539 (1928) and Episcopal Retirement Homes v. Ohio Dep’t of Indus. Relations, 62 Ohio St.3d 1214, 582 N.E.2d 606 (1991). We need not decide the matter in this case because we deny the WCA’s motion on the merits.

In a nutshell, the WCA contends that our opinion undermines its cost-containment efforts under Chapter 4 of Article 52 of the New Mexico Statutes and regulations implementing that chapter. The regulations establish a schedule of maximum charges for services provided by health care providers. See, e.g., NMSA 1978, § 52-4-5 (Repl.Pamp.1991) (Effective Apr. 1, 1991).

The WCA’s concerns are based upon a misreading of our opinion. As stated in the third sentence of our opinion, the parties stipulated that the case is controlled by the provisions of the Workers’ Compensation Act in effect on October 1, 1987. At that time the legislature had enacted no cost-containment provisions in the Workers’ Compensation Act. The WCA contends that regardless of the date of the accidental injury, the cost-containment provisions apply to any services rendered by health care providers after the effective date of the cost-containment legislation and regulations. The WCA may be right in that regard, but that was not an issue in this appeal.

The WCA apparently believes that our opinion interprets “[NMSA 1978,] Section 52 — 4-1 ‘as a short-hand to refer to a list of particular health care oceupations[.]’ ” This belief is incorrect. The opinion does not interpret NMSA 1978, Section 52 — 4r-l (Repl. Pamp.1987). What the opinion does do is consider the extent to which the definition in Section 52-4-1 is incorporated into NMSA 1978, Section 52-l-28(B) (Repl.Pamp.1987) by the language “health care provider, as defined in Section 52-4-1.” In particular, our opinion does not construe the term “health care provider” in the present versions of NMSA 1978, Sections 52-1-49, 52-4-2, 52-4-3, 52-4-4 (Repl.Pamp.1991), and 52-4-5. Cf. Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 69 S.Ct. 503, 93 L.Ed. 611 (1949) (definition of “disability” in another section of workers’ compensation act did not apply to section at issue).

Not only does our opinion not construe the cost-containment provisions of post-1987 versions of the Workers’ Compensation Act, but also our opinion does not consider any effect that those later provisions may have on the application of Section 52-1-28(B). The effect on Section 52-l-28(B) could be direct — as when a later enactment establishes legislative intent requiring a new interpretation of previously enacted language, see Smith v. United States, — U.S. -, -, 113 S.Ct. 2050, 2058, 124 L.Ed.2d 138 (1993) (amendment to statute, which did not redefine the word “use,” made clear that the amending Congress intended a broad meaning for the word, even if the Congress that originally passed the provision had intended a more limited meaning); or the effect could be indirect — by limiting the persons providing services to the worker so that the only persons who have the information necessary to testify regarding causation are health care providers meeting all of the requirements set forth in Section 52-4-1. (We note that under the current version of Section 52-4-1 the term “health care provider” includes out-of-state providers specifically approved by the director of the WCA. See NMSA 1978, § 52-4-1(0) (Repl.Pamp.1991) (Effective Jan. 1, 1991).)

In short, we deny the WCA’s motion for rehearing because the concerns expressed in its motion are predicated on a misreading of our opinion.

IT IS SO ORDERED.

BIVINS, J., concurs. ALARID, J., concurs in the denial of the motions, but not in this opinion.