Riesenecker v. Arkansas Best Freight System

OPINION

HARTZ, Judge.

Respondent Arkansas Best Freight Systems (employer) appeals from a judgment granting claimant Cora Riesenecker (worker) a lump-sum settlement under the Workmen’s Compensation Act, NMSA 1978, Section 52-1-30 (Orig.Pamp.) (replaced by NMSA 1978, Section 52-5-12 (Repl.Pamp. 1987)). We reverse.

Worker is 55 years old. She has worked all of her adult life and has been economically self-sufficient since 1973. During most of her career she worked as a long-haul truck owner and driver. Employer has not challenged on appeal the hearing officer’s determination that she was rendered totally permanently disabled by a 1985 accident in the course of her employment with employer. She has no significant source of income other than workers’ compensation periodic benefit payments, which expire in 1996.

THE APPLICABLE LAW

Because this is an appeal from an administrative agency proceeding, we apply whole-record review. See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). We consider all the evidence bearing on the decision, favorable and unfavorable, to determine whether there is substantial evidence supporting the result. See id.

Determining whether evidence is sufficient to support a judgment first requires resolving what must be proved — what are the elements of the claim. Thus, we begin with a discussion of the circumstances in which a worker is entitled to a lump sum. The pertinent statutory language is:

If, upon petition of any party in interest, the court, after hearing, determines in cases of total permanent disability that it is in the interest of the rehabilitation of the injured workman or in case of death that it is for the best interests of the persons entitled to compensation, * * * the liability of the employer for compensation may be discharged by the payment of a lump sum * * *. [Emphasis added.]

§ 52-l-30(B).

One possible interpretation of the statutory requirement that a lump-sum benefit be “in the interest of the rehabilitation of the injured workman” is that such a payment should be awarded to a worker requesting it if it may be used to assist in the worker’s rehabilitation, regardless of any other factors. (The precise meaning of “rehabilitation” is unnecessary to our result.) That may have been the view of the hearing officer in this case, whose judgment states, “It is in Claimant’s rehabilitative best interest to award a lump sum award payment pursuant to Section 52-1-30, NMSA (1978) inasmuch as Claimant has no other means with which to establish a business which will support her after the cessation of periodic] workers’ compensation benefits.”

That interpretation, however, fails to give adequate consideration to the underlying purposes of the Workers’ Compensation Act. As the New Mexico Supreme Court wrote recently:

The Worker’s [sic] Compensation Act expresses the intention and policy of this state that employees who suffer disablement as a result of injuries causally connected to their work shall not become dependent upon the welfare programs of the state, but shall receive some portion of the wages they would have earned, had it not been for the intervening disability. [Emphasis added.]

Martinez v. Darby Constr. Co., 109 N.M. 146, 148, 782 P.2d 904, 906 (1989). If that policy is properly taken into account, a lump-sum payment should not be awarded, despite the possibility that it may assist in the rehabilitation of the worker, when such a payment would create an undue risk that the worker will end up on the welfare rolls well before the periodic payments would have terminated.

Our appellate decisions interpreting the pertinent language of Section 52-1-30 — “in the interest of the rehabilitation of the injured workman” — have adopted that view. Before discussing those opinions, we note that most reported opinions concerning the appropriateness of lump-sum benefits have not construed the above-quoted language. Prior to the 1975 amendment to the Workers’ Compensation Act, the same statutory standard governed payments of lump sums to injured workers and such payments to the beneficiaries of deceased workers: a lump-sum was authorized if the court determined “in cases of total permanent disability or death that it is for the best interests of the parties entitled to compensation * * NMSA ' 1953, § 59-10-13.5(B) (2d Repl.Vol. 9, pt. 1). The 1975 amendment retained the best-interests test for beneficiaries of a deceased worker, while adopting the rehabilitation-interest standard for an injured worker. Thus, post-1975 cases regarding lump-sum payments to beneficiaries, although supporting the result here, are not directly in point.

Three opinions, however, construe the statutory language at issue in the present case. All note the importance of not granting a lump-sum benefit if it creates a risk that the worker will need to rely on welfare during the time that periodic disability payments would otherwise be available. Upholding the district court’s denial of a lump-sum payment to a worker, Judge Sutin wrote in Lane v. Levi Strauss & Co., 92 N.M. 504, 507, 590 P.2d 652, 655 (Ct.App.1979), “ ‘[T]he purpose of the workmen’s compensation law is to prevent one in petitioner’s position and his dependents from becoming public charges during the period of disability.’ ” (Quoting Prigosin v. Industrial Comm’n, 113 Ariz. 87, 89, 546 P.2d 823, 825 (1976).)

Shortly thereafter, in Lamont v. New Mexico Military Institute, 92 N.M. 804, 808-09, 595 P.2d 774, 778-79 (Ct.App.1979), another decision affirming denial of a lump-sum benefit to a worker, Judge Lopez wrote:

[W]e conclude that the principles governing the payment of lump sum awards under the old statute are still relevant to payment under the amended statute.
Major consideration should be given to the following principle stated in 3 A. Larson, Workmen’s Compensation Law, § 82.71 (1976):
Since compensation is a segment of a total income-insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen’s compensation had never existed. One reason for the persistence of this problem is that practically everyone associated with the system has an incentive — at least a highly visible short-term incentive — to resort to lump-summing * * *
The only solution lies in conscientious administration, with unrelenting insistence that lump-summing be restricted to those exceptional cases in which it can be demonstrated that the purpose of the Act will best be served by a lump-sum award. [Emphasis in Lamont.]

Padilla v. Frito-Lay, Inc., 97 N.M. 354, 639 P.2d 1208 (Ct.App.1981), an opinion by Chief Judge Walters affirming a lump-sum award to a worker, stated the same standard. In particular, the court approved the following language from 3 A. Larson, Workmen’s Compensation Law Section 82.72, at 15-576 to -577 (now § 82.72(b), at 15-1253 to -1255 (1989)): “ ‘[I]f, the claimant needs his compensation benefits to pay his everyday living expenses, it obviously would thwart the purposes of the act to cut them off in order to allow claimant to gamble a lump-sum settlement on a business.’ ” 97 N.M. at 356, 639 P.2d at 1210.

Although we could reconsider how to interpret Section 52-1-30(B) and overrule our precedents, we believe that such a course would be ill-advised. Principles of stare decisis are founded on sound public policy. Former Justice Lewis Powell recently identified three benefits of stare decisis to the United States Supreme Court: “1) enhancing the public stature of the Court by demonstrating that it follows precedent and is ‘not composed of unelected judges free to write their policy views into law’; 2) providing stability in the law; and 3) simplifying the work of the courts.” ABA Journal (The Lawyer’s Magazine/March 1990), at 45. Those reasons apply equally to courts whose members do not have life tenure. Application of stare decisis may be particularly appropriate with respect to statutory interpretation. As Justice Stevens has advised, “[Ajfter a statute has been construed, either by [the Supreme] Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself.” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 268, 107 S.Ct. 2332, 2359, 96 L.Ed.2d 185 (1987) (Stevens, J., concurring in part & dissenting in part).

Although stare decisis should not prevent a court from correcting clear error in prior interpretations of a statute, we are not persuaded that our prior cases have erred in interpreting the statute. Also, we note that the statute we are construing was substantially modified in 1987. Section 52-5-12(A) authorizes lump-sum payments only upon agreement or “under special circumstances, as when it can be demonstrated that lump sum payments are clearly in the best interests of the parties.” Under these circumstances, the benefits of stare decisis outweigh any future public benefit that might arise from reconsidering how to interpret Section 52-l-30(B).

APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

We now turn to the facts of this case. Crucial to our holding is that worker has no present means of support other than her worker’s compensation benefits. Thus, heeding Larson’s warning, quoted in Padilla, we should not thwart the purposes of the Workers’ Compensation Act by permitting worker “ ‘to gamble a lump-sum settlement on a business.’ ” No such concern arose in Padilla, because in that case “claimant’s living expenses were slightly less than his present income from social security disability payments.” 97 N.M. at 356, 639 P.2d at 1210.

Our task in this .case, therefore, is to determine whether the evidence before the hearing officer could support a finding that investing the lump sum in worker’s proposed business would not be an unacceptable “gamble.” The proposed business is a taxi and limousine service for Ruidoso and the nearby airport. Our concern is not with the personal qualities of worker. The record would support a finding by the hearing officer that worker is an energetic individual with sufficient skill to manage the operation of such a service.

The problem is with the economics of the proposed business. Dr. Brian McDonald, Director of the New Mexico Bureau of Business and Economic Research, testified that nationally seventy percent of all start-up businesses fail. Surely most of those businesses fail despite the energy and skill of the owners. Success depends on enough customers paying enough money to sustain the enterprise.

In support of her claim for a lump sum, worker pointed to her acquisition of a certificate of convenience and necessity from the State Corporation Commission. To award such a certificate, the Commission must find that:

(1) the person is fit, willing and able to provide the transportation to be authorized by the certificate and to comply with the Motor Carrier Act and the regulations of the commission; and
(2) the transportation to be provided under the certificate is or will be required by the present or future public convenience and necessity.

NMSA '1978, § 65-2-84(B) (Repl.Pamp. 1981). Frank Smith, the Director of the Transportation Division of the Commission, testified that the issuance of a certificate does not constitute a guarantee of financial success or a warranty that the service will not fail. Indeed, worker provided no financial projections to the Commission and told the Commission that she could not say how much she would make. Her showing of need apparently consisted of a number of short, conclusory letters from Ruidoso residents saying that the service was needed; the letters did not suggest how much the service would be used. The Commission records reflect that at least three other businesses have been awarded certificates of convenience and necessity for similar services in the Ruidoso area. The status of those businesses does not appear in the record in this case, but one must conclude that either worker’s business will face viable competition (if any of the other businesses has survived) or the failure rate of such businesses is high.

Worker added nothing of substance at the hearing in this case. She testified that she did not expect to make money the first year and admitted that she did not know if she will make money at all. Glen Johnson, a successful air-conditioning and heating contractor in San Antonio, Texas, who had been a long-time friend of worker, testified that if worker invested in the venture, he would be willing to invest $20,000 to $25,-000. Yet he stated on cross-examination that he had not made a commitment to worker for such an investment “based on today’s economy there.” He stated that he did not know if the business would make a profit in the first year of operation, but thought that it was “a going thing.” He had not reached a final conclusion on the feasibility of the proposed service.

What is totally absent from the record is any projection or estimate of income from the business. Who would use the service? How often? How much would they pay? Would the payment from these customers suffice to cover the expenses of the business, including a salary adequate to support worker? Worker had no written business plan. She had not consulted an economist or business planner, nor any other expert to analyze the probable success or failure of her proposed venture. Because Ruidoso’s economy and the proposed business would be dependent on tourism, income projections for the business would need to be founded on reasonable projections concerning tourism in the area. None were offered. We note that a little more than six months prior to the hearing in this case worker had written to the State Corporation Commission to request suspension of her certificate for six months because of the poor economic conditions in Ruidoso, although she explained at the hearing in this case that she meant only that her personal economic situation was bad. What worker failed to provide was not just expert testimony, but any evidence, that the proposed business would earn sufficient funds to keep her off the welfare roll.

Particularly telling is the hearing officer’s finding that worker had “no other means [besides a lump-sum payment] with which to establish a business.” Apparently, no bank would loan the necessary funds. No bank, or even an objective venture capitalist, would invest in such a project without more groundwork, at least a realistic financial projection. The Workers’ Compensation Division should be at least as conservative as traditional financial institutions in investing lump-sum payments when the worker is without other means of support. The record does not support a finding that the proposed business would not be a “gamble.” The hearing officer could reach that conclusion only by impermissible speculation.

CONCLUSION

Therefore, we reverse the award of a lump-sum payment. We have not been asked to decide whether worker can pursue her request for a lump-sum payment in a future hearing.

IT IS SO ORDERED.

MINZNER, J., concurs. APODACA, J., dissents.