(dissenting).
I respectfully dissent. I cannot concur with the majority since, in my judgment, it inappropriately weighs the evidence and substitutes its determination for that of the fact finder.
The lump-sum award in this appeal was based on the workers’ compensation judge’s (judge) conclusion that it was in worker’s “rehabilitative best interests” to make such an award under the Workmen’s Compensation Act (the Act), NMSA 1978, Section 52-1-30 (Orig.Pamp.) (replaced by NMSA 1978, Section 52-5-12 (Repl.Pamp. 1987)). Employer contends on appeal that the judge’s lump-sum determination did not meet the two-prong test first formulated in Codling v. Aztec Well Servicing Co., 89 N.M. 213, 549 P.2d 628 (Ct.App.1976), and clarified and applied by this court in Zamora v. CDK Contracting Co., 106 N.M. 309, 742 P.2d 521 (Ct.App.1987). Mindful that periodic payments under a workers’ compensation scheme are the rule and that “lump summing” is a departure from that rule, I nonetheless would hold that the facts of this appeal constitute exceptional circumstances as required by the case law for granting a lump-sum award. I would therefore affirm the judge’s award.
In determining whether the judge erred in granting the lump-sum award, we must apply the standard of review aptly stated in Zamora. There, we held that, in reviewing a lump-sum award, we must determine whether the making of such an award was an abuse of discretion by deciding if substantial evidence supported the award. Confronted by what it perceived as a “somewhat muddled” standard applied in various workers’ compensation cases, Zamora concluded, after analyzing the holding in those cases, that “[t]he trial judge does not have unlimited discretion to grant or deny lump-sum awards; rather the awarding of lump-sum benefits is fact-dependent, and each case stands or falls on its own merits.” Id. at 314, 742 P.2d at 526. Zamora thus concluded that any review by this court for an abuse of discretion “is inherent in the substantial evidence standard of review.” Id. at 314, 742 P.2d at 526.
In this appeal, which originated from an administrative agency decision, we must supplement use of the Zamora standard by also applying the whole record review, instead of the traditional substantial evidence standard. See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). Under this standard, the reviewing court reviews all the evidence bearing on the decision, favorable and unfavorable, in order to determine if there is substantial evidence supporting the result. Id. The trier of fact’s findings are not disturbed if supported by substantial evidence acceptable to a reasonable mind as relevant and adequate to support the conclusion reached. Martinez v. Darby Constr. Co., 109 N.M. 146, 782 P.2d 904 (1989); National Council on Compensation Ins. v. New Mexico State Corp. Comm’n, 107 N.M. 278, 756 P.2d 558 (1988). Using the whole record standard of review, I conclude there was substantial evidence to support the judge’s decision and thus would hold that the judge did not abuse his discretion in ordering the lump-sum award.
To find substantial evidence in the whole record supporting an administrative decision, this court must be satisfied that the evidence demonstrates the reasonableness of the decision. National Council on Compensation Ins. v. New Mexico State Corp. Comm’n. No part of the evidence can be exclusively relied upon if it is unreasonable to do so. Id. On appeal, this court does not weigh the evidence, for that is the task of the fact finder. Santa Teresa Concerned Citizens Ass’n, Inc. v. City of Sunland Park, Ct.App. No. 10,115 (Filed November 20, 1989). In Santa Teresa, Judge Hartz, also writing for this court, was particularly reluctant then to second guess an expert tribunal because of its first-hand knowledge of the facts and the value of its experience in evaluating the expertise and credibility of the witnesses appearing before it. These are the very same actions he apparently has no reluctance taking in this appeal. The dispositive precedent for our review is that when we find sufficient credible evidence for a reasonable mind to accept as adequate support for the agency’s conclusion, that decision will not be disturbed. Id.; see also Martinez v. Darby Constr. Co.; National Council on Compensation Ins. v. New Mexico State Corp. Comm’n.
I submit that the three cases relied on by the majority as establishing precedent for this appeal uphold an agency’s discretion and ultimate decision to grant or deny lump-sum awards, as well as our function, as a reviewing court, in affirming that decision. The majority devotes a considerable portion of its opinion to a discussion of stare decisis principles, concluding that, in deference to those traditional principles, it will not “overrule” precedents. In dissenting and proposing affirmance, I do not suggest that we overrule our existing case law. Instead, I have simply applied the identical case law as the majority, only to reach a different result that I believe finds ample support in the evidence.
The record in this appeal indicates to me that there was substantial evidence supporting the judge’s conclusion that it was in claimant’s rehabilitative best interests to grant a lump-sum award under the Act. Each request for a lump-sum payment is unique and each case stands or falls on its own merits. Codling v. Aztec Well Servicing Co. The quantum and quality of the evidence should portray the existence of “exceptional circumstances.” Id. Codling developed a two-pronged test for the finding of exceptional circumstances. Worker must show (1) that a lump-sum payment is in his/her best interests, and (2) that denial of a lump-sum award would create a manifest hardship. Id. To define “hardship”, Codling used three criteria: a lump-sum award is justified where such relief is essential to (1) protect the worker from want, privation or (2) facilitate the production of income or (3) help in a rehabilitation program. Id. Proof under any one of the criteria is sufficient to support a lump-sum award.
In this appeal, the judge based the lump-sum award on the worker’s “rehabilitative best interests.” The evidence showed that worker was hard working and economically independent. Both the doctor and the physical therapist testified that worker was not a malingerer and was quite troubled by being inactive. The physical therapist’s report noted worker’s inability to sustain any job for any significant length of time without frequent rest intervals. The therapist recommended some type of self-employment where worker could control her hours, rest periods, and productivity level. The doctor concurred with this recommendation.
Because of worker’s unique job restrictions and the limitations of the area’s labor market, the rehabilitation services organization assisting her rehabilitative efforts decided to close her file. That organization was unable to help worker in pursuing meaningful employment. Employer never offered worker a job. The testimony showed there were no job openings in Ruidoso for the type of work worker could perform and sustain for short periods of time. She was unemployed due to her total and permanent disability, with no realistic employment prospects. Worker will be unemployed and economically dependent while receiving the periodic payments. In disability situations where job sustainment is an important factor, self-employment may be the only means to assist the rehabilitation of a permanently and totally disabled worker.
The evidence indicated worker’s sole source of support was her workers’ compensation payments. These payments will end in 1996. At that time, worker will be 61 years old. She will have no business or profession that will economically sustain her. Contrary to the Act’s intent, worker could become a public charge at that time, a dire consequence the majority, in its opinion, states it is attempting to prevent. Instead, the judge’s decision could promote worker’s “rehabilitative program” by allowing her to lead a full and productive life.
Apparently, the basis for the majority’s reversal of the judge’s decision is the testimony of an expert regarding the proposed business’ success. With a record replete of evidence supporting the judge’s findings, I consider it unreasonable to rely exclusively on the expert’s testimony to overrule a decision arrived at after lengthy hearings and presentation of evidence. See National Council on Compensation Ins. v. New Mexico State Corp. Comm’n. The majority concludes that the judge erred in disregarding allegedly uncontroverted evidence of probable business failure, as well as dissipation of the lump-sum award. The evidence relied on by the majority for this conclusion is the testimony of the Director of the New Mexico Bureau of Business and Economic Research. He testified that worker had a very low possibility of success for the contemplated business venture, that the venture would probably fail within a few years, and that she would lose whatever money she invested in the enterprise.
I consider it important that during cross-examination, the expert witness admitted that the economic condition of Ruidoso was comparable to the rest of the state — no better, no worse. He also conceded he did not know various facts regarding the necessity for a taxi service in the area, including the distance from the airport to downtown Ruidoso, the availability of rental cars in the community, the number of flights arriving and departing from the Ruidoso airport, or whether local service businesses provided transportation to their patrons. I also disagree that employer’s expert’s testimony was uncontroverted. There was evidence to the contrary. After a public hearing where there was extensive evidence of local need and support, the State Corporation Commission determined that a “need” did exist for a taxi/limo service and issued a Certificate of Public Convenience and Necessity. Pursuant to Rule 11-301 of the New Mexico Rules of Evidence, there is a presumption of need as a result of the issuance of a certificate. Administrative decisions are entitled to a presumption of correctness when supported by substantial evidence. Frazier v. New Mexico Dep’t of Human Services, 98 N.M. 98, 645 P.2d 454 (Ct.App.1982). In my view, the issuance of the certificate controverted employer’s evidence regarding the possible failure of worker’s proposed business.
However, even if obtainment of the certificate were to be deemed insufficient to controvert the expert’s testimony, I do not interpret Codling’s two-prong test as requiring proof of business profitability before a lump-sum award is justified. In my opinion, the majority has developed a new prong to the test — the showing of no unreasonable risk. The statute and the case law addressing lump-sum awards either are silent on the matter of profitability or strongly suggest that such a showing is unnecessary. See § 52-1-30; Merrifield v. Auto-Chlor Sys. of Albuquerque, 100 N.M. 263, 669 P.2d 739 (Ct.App.1983); Padilla v. Frito-Lay, Inc., 97 N.M. 354, 639 P.2d 1208 (Ct.App.1981).
Padilla rejected the notion that the Act mandated expert testimony to support a worker’s expectation of profitability. In Merrifield, this court held that facilitation of income did not mean maximizing the return on the investment. A business’s projected profitability is not the criterion required for granting lump-sum awards for start-up business costs. Otherwise, lump-sum benefits would never be granted for this purpose. In a free capitalistic economic system, no one can be certain of success.
I am mindful of the risks inherent in affirming the lump-sum award in this appeal. This risk may be greater than existed in Padilla, where, as the majority has pointed out correctly, the worker’s living expenses were slightly less than his income from social security disability payments. Here, the worker’s sole income was her periodic workers’ compensation payments. I am likewise aware of the admonishment found in Padilla:
[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.
Id. at 356, 639 P.2d at 1210 (citing 3 Larson, Workmen’s Compensation Law 15-576, -577 § 82.72 (1989)). In this connection, I am also cognizant that worker testified she did not anticipate experiencing a profit during the first year of operation. Nevertheless, it would be reasonably anticipated that she would elect to draw a salary during that first year and that this would be an expense to the business, thus precluding a profit during that period.
In construing a particular statute, a reviewing court’s centra] concern is to determine the intent of the legislature. State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 749 P.2d 1111 (1988); Smith Mach. Corp. v. Hesston, Inc., 102 N.M. 245, 694 P.2d 501 (1985), cert. denied, — U.S. -, 110 S.Ct. 1119, 107 L.Ed.2d 1026 (1990). In making this determination, the court will look primarily to the language used in the statute. See First Nat’l Bank v. Southwest Yacht & Marine Supply Corp., 101 N.M. 431, 684 P.2d 517 (1984). We should not add a requirement that is not provided for in the statute, Amerada Hess Corp. v. Adee, 106 N.M. 422, 744 P.2d 550 (Ct.App.1987), nor read language into it that is not there. State ex rel. Klineline v. Blackhurst. Additionally, an act must be read in its entirety and each part must be construed in connection with every other part to produce a harmonious whole. General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 703 P.2d 169 (1985).
It thus appears to me that the majority is not only adding a new requirement to Section 52-1-30 not foreseen by the legislature, but is also not considering the Act as a whole. See New Mexico Hosp. Ass’n v. A.T. & S.F. Memorial Hospitals, Inc., 105 N.M. 508, 734 P.2d 748 (1987). Even though the Act’s intent is to prevent workers from becoming dependent upon the welfare system, Martinez v. Darby Constr. Co., and periodic payments are the favored form of compensation, Lane v. Levi Strauss & Co., 92 N.M. 504, 590 P.2d 652 (Ct.App.1979), the legislature explicitly allowed lump-sum payments under the Act, if such awards were found to be in the worker’s rehabilitative best interests. The majority’s opinion today nullifies this allowance. If the facts of this appeal fail to sustain the judge’s determination of exceptional circumstances, it is difficult to imagine a hypothetical set of facts that would offer such support.
It is fundamental that a reviewing court will not weigh the evidence. Marez v. Kerr-McGee Nuclear Corp., 93 N.M. 9, 595 P.2d 1204 (Ct.App.1978). Instead, the court must consider the evidence and inferences that reasonably may be drawn from such evidence in the light most favorable to support the trial court’s findings. Moorhead v. Gray Ranch Co., 90 N.M. 220, 561 P.2d 493 (Ct.App.1977).
In National Council, our supreme court stated:
To conclude that an administrative decision is supported by substantial evidence in the whole record, the court must be satisfied that the evidence demonstrates the reasonableness of the decision. No part of the evidence may be exclusively relied upon if it would be unreasonable to do so. The reviewing court needs to find evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency.
Id. 107 N.M. at 282, 756 P.2d at 562. Additionally, in Martinez, our supreme court held that an appellate court, in reviewing an agency’s decision under whole record review, must conduct “an independent examination of the entire record to determine whether substantial evidence exists to support the reasonableness of the [judge’s] decision to award benefits to the claimant.” Martinez v. Darby Constr. Co., 109 N.M. at 148, 782 P.2d at 906.
It is important to bear in mind that Martinez reversed this court’s decision, concluding we had misapplied whole record review. The court held that we had substituted our determination for that of the agency and that substantial evidence existed to support the reasonableness of the agency’s award. I maintain that the majority, in not heeding the admonishment in Martinez, has once again substituted its judgment for that of the trier of fact in reweighing the evidence.
Because I would affirm, it is necessary that I address employer’s reliance on this court’s holding in Zamora. Relying on our holding there, employer urges that we reverse the judge’s lump-sum award, claiming the award was based on the spectre of distant deprivation. In Zamora, the plaintiff was a young, employed widow of a deceased employee, with three young children. She wanted the lump-sum award to enroll in photography school, to purchase a home and to make investments for the future education of her children. She had several sources of income that exceeded her expenses. The plaintiff, who was not disabled, testified that her present situation was adequate and that there were no anticipated major expenses or health costs. This court in Zamora concluded that the plaintiff’s projected hardships might never materialize and reversed the trial court’s lump-sum award.
Zamora’s holding was premised on the following language:
Based on the trial court’s findings and conclusions, and its letter decision that was incorporated as a finding, it is clear that the lump-sum award was predicated on the first two criteria from Codling; that is, protection from want or privation and facilitation of the production of income. We are, therefore, not concerned with the third criteria — rehabilitation.
Id. 106 N.M. at 313, 742 P.2d at 525.
In this appeal, on the other hand, the judge based his lump-sum award on the worker’s “rehabilitative best interests.” I interpret the judge’s findings and conclusions as focusing on the third Codling criteria, not on the first two, as was clearly the case in Zamora. I thus consider Zamora not only factually distinguishable, but that its holding in denying a lump-sum award was based only on the first two of the Codling criteria, not on the third, which formed the basis for the judge’s award in this appeal.
The claimant here was the totally and permanently disabled employee, not an employee’s widow who was able to work. She was unemployed, with no realistic employment prospects. The periodic benefits were her only source of income, and she had no savings. Worker had no dependents. Her disability required present and future medical care. I believe worker’s future economic privation was not prospective and speculative but presently ascertainable. In contrast to Zamora, in which this court held that a lump sum was to be awarded only when a present, pressing need was shown, and no such need was shown to exist there, the facts of this appeal indicate there was a present, pressing need for worker to commence a business of her own for rehabilitative reasons.
Padilla is factually more similar to this appeal than Zamora. In Padilla, the claimant had suffered almost complete blindness as a result of a work-related injury. The claimant was found to be permanently and totally disabled. He requested a lump-sum settlement in order to purchase a laundromat. As in this appeal, the employer raised questions regarding the profitability of the venture. The claimant had never owned or managed a business and the only evidence supporting the potential success of the business was the self-interest testimony of the laundromat owner. Yet, the court held it would be in the claimant’s “best interests” to allow a lump-sum settlement so that he could purchase the laundromat.
In Padilla, the court found that the “best interests” of the claimant was not only limited to producing income for himself but also to help in his full rehabilitation. Rehabilitation entails restoring a disabled worker to his greatest physical, mental, social and vocational potential. Id. Padilla acknowledged possible tragedies, such as alcohol and drug abuse, that can accompany inactivity. This court in Padilla concluded that the “best interests” of the claimant could be the mental and emotional stability engendered in the personal satisfaction of being self-employed and capable of earning one’s living. I conclude that, in this appeal, worker’s rehabilitation could be enhanced and promoted if she were allowed to be self-employed and earn her own living.
From the contrasting fact patterns, different policy concerns emerge respectively in Padilla, Zamora and in this appeal. In Zamora, the court was interested in preventing the young widow and the three young children from becoming public charges. In Padilla, we recognized other possible “privations” besides economic needs. In this appeal, the judge apparently placed emphasis in the worker’s full rehabilitation. I am unwilling to substitute my judgment for that of the judge. Neither am I willing to hold unequivocally that the award was not supported by substantial evidence and that the judge consequently abused his discretion, as required by the case law before such a determination is reversed.
In summary, applying the applicable standards and criteria, I would conclude that there was substantial evidence supporting the judge’s determination of exceptional circumstances justifying a lump-sum award. Consequently, I would affirm.