(dissenting).
I dissent.
The authority to grant lump-sum awards in lieu of periodic payments is § 52-1-30, N.M.S.A.1978. It provides that if the court “determines in cases of total permanent disability that it is in the interest of the rehabilitation of the injured workman . . . the liability of the employer for compensation may be discharged by the payment of a lump sum .... ” As I read the statute, not only must a lump-sum award further the rehabilitation of. the workman, it must also be in his best interest. These factors must be present as a matter of law before lump-sum awards may be granted.
Although I agree wholeheartedly with the majority opinion that a disabled worker should be given every opportunity to make a fresh start in a new and challenging career, I believe that goes to the rehabilitation of the worker. The best interests of the worker may overlap with rehabilitation, but it also encompasses other aspects of an award of workmen’s compensation, for instance, financial stability for the future of the worker and his family. It is the worker’s burden to show the award is in his best interest. Codling v. Aztec Well Servicing Co., 89 N.M. 213, 549 P.2d 628 (Ct.App.1976).
Almqst anyone who works 8 to 5 for the benefit of someone else has dreamed of owning his own business, where he makes and enforces the rules. The thought of a lump-sum workmen’s compensation award can bring the plan for such a business to the forefront of the disabled worker’s mind. Under proper, though exceptional, circumstances, this is a commendable goal and lump-sums should be awarded. However, not everyone can or should be able to start a “chicken farm.” See, 3 Larson’s Workmen’s Compensation Law, § 82.72, at 15-576 (1976). One must not forget that the goal of the workmen’s compensation system is “to secure the injured employee against want, and to avoid his becoming a public charge.” Hughey v. Ware et al., 34 N.M. 29, 276 P. 27 (1929). For that reason, before a lump-sum to be used to buy a business is awarded, certain findings must be made by the district court.
The majority opinion states that the plaintiff was confident he and his family could run the laundromat, that he and his wife reviewed the financial records with the seller and the laundromat’s bookkeeper, and that “[t]here was evidence received regarding the good financial condition of the business and its projected net profits.” The only evidence received pertaining to the financial condition of the business was from the seller himself, who stated he realized an increasing profit each year. I do not believe this is sufficient to show that the purchase of the laundromat would be in the best interests of the plaintiff. In order for it to be in the best interest of the plaintiff, he should have to show that the business to be purchased is financially secure. The testimony of the owner that it is profitable was self-serving, since he obviously wants the sale to be completed. The testimony of the plaintiff that he and his wife reviewed the books with the owner and bookkeeper does not help prove anything about the financial security of the business. Neither the plaintiff nor his wife were experienced or skilled in accounting. The books could easily have been altered to make the business appear profitable. There was no evidence on goodwill, the condition of the equipment and fixtures, encumbrances, assumption of debt and liabilities, assumption of any leases by the plaintiff, taxes on the transfer of the business, etc. This is certainly not the type of a situation where an attorney could tell the plaintiff to buy the business without checking further. Certainly no court should allow a lump-sum award in this situation.
The majority opinion seems to hold that defendants had a duty to produce evidence at trial to contradict plaintiff’s claim that the investment was sound and the income potential was good. It is my understanding that the plaintiff has the burden of showing it is in his best interests to be awarded a lump-sum. Codling, supra. The plaintiff has failed to show it is in his best interests.
I would reverse the trial court and instruct the trial court to enter an order for weekly payments. See, Stell v. Industrial Commission, 23 Ariz.App. 167, 531 P.2d 543 (1975) (lump-sum award reversed to plaintiff who wanted to start a hog farm where the court found the business venture did not appear economically feasible); Lincoln Water & Light Co. v. Industrial Commission, 332 Ill. 64, 163 N.E. 381 (1928) (lump-sum award reversed where plaintiff desired to start electrical business, but court felt there was greater chance of failure than success); Snyder v. Union Mills, 220 App.Div. 786, 222 N.Y.S. 94 (1927) (lump-sum award reversed where woman with no business experience desired to renovate her home into a two-family residence, but the court held nothing indicated the property would be rentable if the changes were made).