(dissenting).
I dissent.
Judgment for plaintiff was entered January 24, 1980. Over 10 months have passed. Defendant insurance carriers have withheld compensation benefits to a workman, which benefits both agree are due and payable by one or the other of the defendants. This crass concern for the care of a workman totally disabled, one with a family, does not deserve the respect of appellate courts on review. It violates the spirit of the Workmen’s Compensation Act. Payment during this period, with a reasonably protective stipulation, dependent upon the ultimate determination of liability, should have been made. Neither of the insurance carriers should profit by the retention of funds to the detriment of a workman and his family.
The trial court made the following pertinent facts:
3. On June 3, 1976, Plaintiff was employed by * * * Riccobene * * * [And]
4. * * * in the course and scope of his employment, suffered an accident resulting in an injury to his back.
6. On January 29, 1979, Plaintiff was employed by Defendant * * * Gillory * *
7. While working for Gillory between August, 1978 and January 29, 1979, Plaintiff suffered a herniated disc.
8. On January 29, 1979, Plaintiff left work early because of pain in his back and has not returned to any occupation.
10. Plaintiff is presently 100% disabled.
11. Plaintiff's present disability was proximately caused by the accident of June 3, 1976.
12. Plaintiff’s present disability was proximately caused by the aggravation of the June 3, 1976 accident by an operative accident that Plaintiff suffered between August, 1978 and January 29, 1979 while working for Defendant Gillory.
20. Plaintiff’s disability is proximately caused to the extent of 70% by the accident of June 3, 1976, and 30% by the aggravation thereof by the operative accident incurred while working for the Defendant Gillory. [All emphasis added.]
The trial court worded its findings No. 11 and 12 to attempt to make applicable the rule of apportionment of the payment of workmen’s compensation benefits by two different employers. The meaning of the phrase “by an operative accident” used in findings No. 12 and 20 is unknown. The trial court obtained the words “operative accident” from one of the cases that a lawyer below quoted in argument. The arguments were not recorded, a usual lack of reasonable care on the part of lawyers. That phrase did not appear in any of the briefs filed in this Court and its meaning has not been defined in Words and Phrases. If the phrase is omitted as mere surplusage, the trial court’s facts made read:
Plaintiff’s present disability was proximately caused by the accident of June 3, 1976, and this disability was aggravated by that which plaintiff suffered between August 1, 1978 and January 29, 1979 while working for defendant Gillory.
There are two reasons why “operative accident” should be considered surplusage. The court found additionally (1) that “Plaintiff’s present disability was proximately caused by the [Riccobene] accident of June 3, 1976” and (2) “Plaintiff’s disability is proximately caused to the extent of 70% by the [Riccobene] accident of June 3, 1976, and 30% by the aggravation thereof * * *” while employed by Gillory. [Emphasis added.] These additional findings convince me that the trial court meant the “aggravation” theory rather than the second accidental injury theory.
Perea v. Gorby, 94 N.M. 325, 610 P.2d 212 (Ct.App.1980) is an aggravated back injury case. Perea suffered a disabling compensable injury on March 22, 1977, while working for Gorby. In March or April, 1978, Perea went to work at Oceanside Ice Company as a block supervisor. On May 4, 1978, Perea bent over to show a crew member how to engage a pallet jack and when he straightened up he had intense pain in his back. Gorby claimed that Oceanside was liable for payment of Perea’s compensation benefits because his preexistent injury was aggravated during his employment with Oceanside. We held that the second injury at Oceanside was the result of the first injury at Gorby from which Perea never recovered and Gorby, therefore, was liable for payment of Perea’s workmen’s compensation benefits.
Under Perea, aggravation of a preexistent back injury is not a second accidental injury.
If the phrase “operative accident” is held not to be surplusage, what is meant “by the aggravation of the June 3, 1976 accident by an operative accident”? Have we left the field of “aggravation” and entered the field of a second accidental injury? The majority opinion interprets this language “to mean that while working for Gillory, Powers suffered a compensable injury as described in § 52-1-28 * * By this process of reasoning, “aggravation” is deleted and the “operative accident” was held to mean a second accidental injury.
The majority and dissenting opinions “interpret” the court’s finding No. 12 surplus-age-wise to escape the apportionment theory of payment of workmen’s compensation benefits. The burden is really upon the trial court to determine whether the Gillory employment was merely an aggravation of the preexistent Riccobene injury or whether it was a second accidental injury. Perhaps this is the best solution. The trial court was placed in a quandary. It sought a just and fair result and found one under a theory not yet acceptable in New Mexico.
The majority opinion also states that “One rule * * * the Massachusetts-Michigan rule * * * is that the second insurer is liable if the second injury contributed even slightly to the cause of the. disability. Rock’s Case, 323 Mass. 428, 82 N.E.2d 616 (1948).” I disagree. Rock’s Case, as discussed in Perea, involved a back injury in which the insurer of the first injury which occurred in 1943, was held liable to pay all compensation benefits even though the workman, while employed by the second employer in 1946 was hurt in the same region while lifting a barrel and was unable to work again until April 29, 1947, and then could work only part time. That which the court meant by “a contributing cause of the subsequent disability” was “an independent intervening cause for his subsequent incapacity.” The use of the phrase “even to the slightest extent” was an anomaly that is often mistakenly inserted in a judicial opinion.
In the instant case, the trial court did not find that the second injury operated as a separate independent intervening contributing cause of Power’s disability. Rock’s Case directly supports Gillory’s position that Riccobene is liable for payment of all workmen’s compensation benefits.
Perea established the following rules to apply where a workman suffers injuries under successive employers:
(1) Where the second injury of a workman is an aggravation of the first injury, the employer of the workman during the first injury is liable for payment of all workmen’s compensation benefits, or
(2) Where the second injury is not a recurrence of the first injury but a result of that injury from which he had not recovered, the same conclusion is reached.
(3) Where the second injury is an independent intervening contributing cause of the workman’s disability, the employer of the workman during the second injury is liable for payment of all workmen’s compensation benefits.
The judicial approach to these conclusions is based upon the duty of the first employer to compensate an injured workman until liability has ended by way of payment, settlement or the occurrence of a subsequent independent intervening cause in accordance with law. When liability has ended, so has payment of compensation ended. This approach is in keeping with the spirit of the Workmen’s Compensation Act. It is reasonable and fair. The first employer or insurance carrier, both experienced in workmen’s compensation law, should not escape liability for an injured workman in hopes that in subsequent employment the injured workman will again be injured.
The judgment should be affirmed. The trial court should be ordered to enter judgment against Riccobene and United States Fidelity and Guaranty Company for the entire amount. Plaintiff should be awarded $2,500.00 for attorney’s fee in this appeal. Costs should be paid by Riccobene.