(dissenting).
I respectfully dissent.
Appellant based his petition for a lump sum payment of benefits upon §§ 59—10—13.5(B) and 59-10-25(B) of the New Mexico Workmen’s Compensation Act, N. M.S.A.1953 (2d Repl. Vol. 9, 1974, pt. 1).
The appellant has received maximum compensation benefits allowable under the Workmen’s Compensation Act which the employer has paid without default. Therefore appellant’s petition was prematurely filed under the' provisions of § 59-10-36, N.M.S.A.1953 (2d Repl. Vol. 9, 1974, pt. 1) which states, in part:
“ . . . No claim shall be filed by any workman who is receiving maximum compensation benefits; . . . ” [Emphasis added.]
The majority rely upon the holding in Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975). The issue presented in that case was whether, under the New Mexico Workmen’s Compensation Act, §§ 59-10-1 through 59-10-37, supra, the trial court could award attorney fees to the claimant when only medical and hospital expenses are recovered by the plaintiff. The Supreme Court concluded “that medical expenses are compensation for the purpose of allowing attorney fees under § 59-10-23(D).” Schiller, supra, at 478, 535 P.2d at 1329. [But cf. Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (Ct.App.1972) and Lasater v. Home Oil Company, 83 N.M. 567, 494 P.2d 980 (Ct.App.1972)].
Another distinction in Schiller, is that the plaintiff sued for and recovered medical and hospital expenses incurred by him. In the instant case, the unpaid medical bill was incurred at the direction of the defendant. It remains the defendant’s obligation. I do not see that Schiller is applicable here.