(dissenting).
I respectfully dissent.
The initial problem is to get around the established New Mexico rule stated in Owen v. Burn Const. Co., 90 N.M. 297, 563 P.2d 91 (1977):
“Where the decree is clear and unambiguous, neither pleadings, findings nor matters dehors the record may be used to change or even to construe its meaning.”
The judgment in this case states quite unambiguously,
“That upon the signing of a Satisfaction of Judgment, the defendant shall be fully and finally released and discharged for any and all claims by the plaintiff on account of the plaintiff’s alleged accident or injury on or about July 3, 1975, while working for the defendant in' the Rio Grande Zoo.”
Although the language of the Stipulation for Judgment differs sufficiently from that of the Judgment to give rise to a question as to whether Ruiz intended to waive his right to rehabilitation benefits, the rule quoted above means that this court cannot go behind the judgment unless it appears that the settlement was arrived at through fraud, imposition, or a mistake against which equity will afford relief. Herrera v. C & R Paving Company, 73 N.M. 237, 387 P.2d 339 (1963). Ruiz was poorly represented by his attorney, but I do not think the record contains facts from which it is reasonable to conclude that the City and Ruiz’s attorney were in collusion to prevent Ruiz from learning about his possible future right to rehabilitation benefits. Short of a finding of collusion between the City and Ruiz’s attorney or of intentional misrepresentation by the City, I fail to find any basis for holding that the City had a duty to disclose to Ruiz his rights with respect to rehabilitation benefits.
The $100 for attorney’s fees was taken out of the award to the plaintiff of $1,855.00. This was contrary to the statute, § 59-10-23(C), N.M.S.A. 1953 (Repl. Vol. 9, pt. 1, 1974), which requires that plaintiff’s attorney fees be taxed against the employer.
Judge Sutin holds that Ruiz is entitled to $1,000.00 in rehabilitation benefits and that the district court has no discretion in the matter. The language of the statute negates this theory:
“ . . .An employee who, as a result of injury, is or may be'expected to be totally or partially incapacitated for a remunerative occupation, and who, under the discretion of the court, is being rendered fit to engage in a remunerative occupation, may, under regulations adopted by it, receive such additional compensation as may, in the discretion of the court, be deemed necessary for his board, lodging, travel and other expenses and for the maintenance of his family during the period of rehabilitation; however, such additional compensation shall not exceed one thousand dollars ($1,000). . . . ” § 59-10-19.2, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1, 1974). [Emphasis added.]
Whether or not the employee receives rehabilitation and how much additional compensation he receives is clearly within the discretion of the trial court. No court has ever heard evidence on the extent of Ruiz’s disability or of his entitlement to rehabilitation benefits; it is now within the province of this court to decide the matter. Since the judgment entered disposed of all of Ruiz’s claims, he is not entitled to further hearing as to rehabilitation benefits.