(specially concurring).
I specially concur.
The question for decision is whether the complaint for a lump-sum award was prematurely filed.
In 1969, the legislature amended § 59-10-13 of the Workmen’s Compensation Act. It added a subsection B. It read:
Whenever the court determines in cases of total permanent disability or death that it is for the best interests of the parties entitled to compensation, and after due notice to all parties in interest of a hearing, the liability of the employer for compensation may be discharged by the payment of a lump sum .... [Emphasis added.]
In 1973, this subsection was amended. The word “Whenever” was deleted. The following italicized words were substituted :
If, upon petition of the party in interest, the court determines in cases of total permanent disability . . . that it is for the best interests of the parties entitled to compensation, . . . the liability of the employer for compensation may be discharged by the payment of a lump sum ....
What is meant by the phrase “in cases of total permanent disability” ? Defendants rely on Sanchez v. Kerr McGee Company, Inc., 83 N.M. 766, 497 P.2d 977 (Ct.App. 1972). Here we held:
Section 59-10-13.5(B), supra, has as a prerequisite a determination of “total permanent disability.” The claim filed in the trial court was not a case of "total permanent disability.” [Emphasis added.] [83 N.M. at 767, 497 P.2d at 978].
We did not determine the meaning of the phrase. We refused to do so because the claim filed did not give rise to the application of § 59-10-13.5(B).
Now, we are confronted with a case “of total permanent disability”. The legislative intent is clear. It gave to plaintiff the right to file a petition, a separate claim, a separate proceeding, under the Workmen’s Compensation Act. Why? For what purpose? To determine two questions: (1) Is this a case of “total permanent disability”? If it is not, the Court need proceed no further. If it is, (2) Is it “for the best interests of the parties entitled to compensation” to grant a lump sum award ?
The purpose of § 59-10-13.5 is clear. It gives to a workman an early opportunity to solve an economic problem. If successful, he may not be forced to accept maximum installment payments for 550 weeks under § 59-10-18.2.
If we do not adopt this meaning, § 59-10-13.5 (B) has no purpose.
Under this section, a petition is not prematurely filed when a workman contends that he is totally and permanently disabled.
Plaintiff’s complaint and affidavit established that plaintiff was totally and permanently disabled at the time the petition was filed. The defendants did not answer. The defendants admitted, by affidavit, they were paying plaintiff the maximum amount of compensation benefits provided by law. This is an admission of total disability. They did not deny that plaintiff was permanently disabled. The claim filed was a case of “total permanent disability”.
Section 59-10-25(B) provides:
The district court in which the right to compensation is enforceable at all times has the right and power to authorize, direct or approve any settlement or compromise of any claim for compensation . . . for the amount and payable in . . . lump sum or in any other way and manner as the court may approve. [Emphasis added.]
No settlement or compromise is present. Section 59-10-25(B) is not applicable.
The only other problem to resolve is the relationship between § 59-10-13.5 and § 59-10-36. The latter section reads:
No claim shall be filed by any workman who is receiving maximum compensation benefits; . . . . [Emphasis added.]
This section “bars a suit to establish liability for compensation.” Arther v. Western Company of North America, 88 N.M. 157, 538 P.2d 799, 780 (Ct.App.1975). Section 59-10-36 is not applicable because liability was admitted by payment of workmen’s compensation benefits.
Defendants also rely on Arther, supra. This case is contra to defendant’s contentions. Here, a death occurred. The admission in the answer established liability for death. The Court said:
This admission of liability sufficiently established plaintiff’s right to compensation and authorized a lump-sum award under § 59-10-25 (B), supra. [Emphasis added.] [538 P.2d at 801],
I would agree with this conclusion if § 59-10-13.5 (B) were substituted for § 59-10-25 (B).
In Arther, the Court concluded that the findings of the trial court of directing a lump-sum award were not in the best interests of plaintiff, the dependent widow.
Plaintiff’s petition is not a claim for compensation. Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975) is not in point. This case holds that medical expenses are “compensation” for purposes of allowing attorney fees where the claimant recovers medical and hospital expenses. In the instant case, plaintiff does not seek such recovery. He would have no claim for such recovery.
This case should be reversed. The plaintiff is entitled to a hearing (1) for a determination of “total permanent disability”, and if so found, then (2) a determination of a lump-sum award according to the best interests of the plaintiff.