(specially concurring).
I concur in the result and believe that additional relief should be granted plaintiff.
Ofttimes, when a trial judge decides a , case, he makes law — sometimes good, sometimes bad. A new case, being what it is, often leads a court to legislate, whether it wants to or not. This is especially true when lawyers obfuscate the proceedings and the issues and the trial judge exercises his discretion in arriving at a decision.
A. The Record On Appeal
The record shows the following dates and events:
(1)On March 19, 1974, “Final Judgment” was entered in which the trial court found plaintiff totally disabled and awarded compensation therefor; that plaintiff would be totally disabled for a period of six months ending July 4, 1974, and ordered payments to be made by defendants until that date, and then arbitrarily ordered, “at which time the plaintiff may bring the matter before the Court for a determination of his disability status as provided by law.” [Emphasis added.]
Section 59-10-16(A) provides for inclusion in a judgment “an order upon the defendants for the payment to the workman, at regular intervals during the continuance of his disability ”. [Emphasis added.] There is no provision by statute that the trial court can summarily fix a time for plaintiff to bring the matter before the court. Section 59-10-25(A) provides that upon application by a workman, the district court may fix a time and place for hearing, “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.” [Emphasis added.]
(2) On April 4, 1975, after the judgment was affirmed and a mandate filed, the trial court entered judgment on the mandate, and at the same time, plaintiff executed and filed a satisfaction of judgment which showed a full and complete satisfaction of the “Final Judgment” entered on March 19, 1974.
(3) On April 26, 1976, more than one year after satisfaction of the judgment, plaintiff moved “the Court that the Defendant be ordered to reinstate his workmen’s compensation as of July 4, 1974”. [Emphasis added.] The issue to be decided was whether plaintiff’s total disability continued after July 4, 1974.
(4) At some unspecified time, defendants’ attorney states he filed a motion “to dismiss for lack of jurisdiction.” The attorneys in these proceedings were not concerned with the fact that the motion to dismiss, if written, does not appear in the transcript of the record, and if oral, the circumstances under which it was made, is not shown. Neither do we know upon what basis the motion was made. This lack of concern by lawyers is a return to adolescence in the practice of the law. It may not be of significance to some appellate judges, but it is to me. This reference to adolescence not only applies in this case but is a common occurrence, and it does not arouse my sympathy.
(5) On July 30, 1976, argument was held on defendants’ motion to dismiss for lack of jurisdiction. Jurisdiction is the power to hear and decide. Defendants’ argument was based upon the application of § 59 — 10-13.6, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1). This statute bars a claim for workmen’s compensation if the claim is not filed within one year “after the failure or refusal to pay compensation.”
(6) On August 26,1976, the court entered its final order from which this appeal was taken. Defendant did not raise any issue of waiver in the trial court. Nevertheless, the trial court found “that plaintiff by his delay in filing such Petition has waived any rights to bring this matter before the court and the court further finding that the Motion is well taken; ” the court ordered plaintiff’s petition dismissed with prejudice. [Emphasis added.] It desires clarification by this Court on its decision and judgment.
Two issues are presented on this appeal: (1) Did the trial court lack jurisdiction to hear and decide this matter, and (2) did plaintiff waive his rights to bring this matter before the court?
B. The trial court did not lack jurisdiction.
We are confronted with one serious problem. Does a trial court have the power to terminate the end of total disability in a “Final Judgment” and grant the plaintiff a discretionary right for six months in which to determine his disability status “as provided by law”? We say “No.” This is a matter of first impression.
When a complaint and answer are filed in a workmen’s compensation case, the trial court determines whether a workman is disabled. If the workman is disabled at the time of trial, the court must enter judgment against defendants “for the amount then due, and shall also contain an order upon the defendants for the payment to the workman, at regular intervals during the continuance of his disability, the further amounts he is entitled to receive.” Section 59-10-16(A). This kind of judgment is mandatory.
This is not a “Final Judgment”. We all know that “[t]here 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.” Churchill v. City of Albuquerque, 66 N.M. 325, 327, 347 P.2d 752, 753 (1959). During this period of time, the trial court has continuing jurisdiction to determine the disability status of the workman. Segura v. Jack Adams Contractor, 64 N.M. 413, 329 P.2d 432 (1958); LaRue v. Johnson, 47 N.M. 260, 141 P.2d 321 (1943). This determination is made when the employer or the workman calls this matter of disability to the attention of the court. Section 59-10-25(A). The plaintiff did call this matter to the attention of the court, and the trial court had jurisdiction to determine plaintiff’s disability subsequent to July 4, 1974. The defendants’ motion directed to lack of jurisdiction did not seek a termination of plaintiff’s disability. This issue was not before the court. The trial court proceeded contrary to the explicit provisions of the Workmen’s Compensation Act and the court’s provision for termination of total disability is null and void.
Defendants contend that the one-year statute of limitations contained in § 59-10-13.6 is applicable, warranting dismissal of, plaintiff’s petition. They say:
Claimant’s delay of over a year between the time of final Satisfaction of Judgment (April 4, 1975) and the filing of the petition for reinstatement of benefits (April 26, 1976) was in excess of this one year period, thereby mandating dismissal of the petition.
It is a common occurrence for trial courts and attorneys to pole vault to dismissal without a pole, or to dance around the law without a partner to sustain a “lack of jurisdiction.” Those are two of the reasons we are flooded with appeals. Section 59-10-13.6 applies to the initial claim for compensation. It does not apply to reopening procedures.
Defendants argue that the same considerations which led the legislature to enact this statute are as applicable to reopening procedures as the filing of the initial claims, i. e., to allow the employer to protect himself by prompt investigation and treatment of the injury, to prevent fraud, and to protect litigants from stale claims. This protection is given defendants by § 59-10-25(A).
The trial court did not lack jurisdiction. The trial court erred in sustaining defendants’ motion to dismiss.
C. Plaintiff did not waive his rights.
The trial court found that plaintiff waived his rights to bring this matter to the attention of the trial court within six months as provided in the “Final Judgment”. Inasmuch as this portion of the “Final Judgment” is null and void, plaintiff did not waive his rights. One purpose of the Workmen’s Compensation Act is to protect the workman after judgment is entered during the time that he is disabled. The employer is liable until such time as the workman, for some consideration, releases the employer of all liability, or the parties enter into a stipulation for a lumpsum judgment that is fully paid and satisfied. Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964). Neither event occurred.
The satisfaction of judgment executed by the plaintiff in “full and complete satisfaction of the final Judgment entered in this cause on March 19, 1974,” means exactly what it says. He was paid compensation and attorney fees for total disability through July 4, 1974. He did not satisfy all future compensation to which he was entitled thereafter.
Plaintiff did not waive his right to bring this matter before the court.
D. Plaintiff is entitled to payment of compensation until disability is terminated.
Plaintiff was entitled to compensation for disability after the “Final Judgment” was entered on March 19, 1974. These payments must be made at regular intervals during the continuance of his disability, “subject to its termination should the court subsequently adjudge that the disability had ceased.” LaRue, supra, 47 N.M. at 268, 141 P.2d at 326. Plaintiff sought to “reinstate” the disability payments after July 4, 1974. The defendants did not seek to diminish or terminate plaintiff’s disability. Until they do, plaintiff is entitled to a continuation of total disability payments from and after July 4, 1974. Plaintiff’s motion should be granted.
This cause should be reversed. In addition thereto, I believe that plaintiff’s motion that the court order defendants to make the payments from and after July 4, 1974, should be sustained and plaintiff should be paid compensation until the defendants desire to contest plaintiff’s disability. Plaintiff is entitled to attorney fees on this appeal in the sum of $2,000.00.