(dissenting).
I dissent.
On August 2, 1973, plaintiff sued Gonzales for damages arising out of an automobile collision. The jury having returned with a verdict of zero damages in favor of plaintiff, judgment was entered in favor of plaintiff for zero damages.
On August 27, 1979, plaintiff filed a workmen’s compensation claim against defendants arising out of the Gonzales accident for medical expenses and attorney fees. The trial court awarded defendants summary judgment on the theory of collateral estoppel and plaintiff appeals. We should reverse.
“Collateral estoppel means that when an issue of ultimate fact has been decided by a valid judgment, that issue cannot be litigated again between the same parties.” Phillips v. United Serv. Auto. Ass’n, 91 N.M. 325, 328, 573 P.2d 680 (Ct.App.1977); State v. Nagel, 87 N.M. 434, 535 P.2d 641 (Ct.App.1975). “Thus, the application of collateral estoppel requires an identity of parties in the prior and subsequent litigation.” State v. Rogers, 90 N.M. 604, 607, 566 P.2d 1142 (1977).
Inasmuch as the parties in the prior and subsequent litigation were not the same, collateral estoppel is not applicable.
Summary judgment is also erroneous under § 52-1-56(0), N.M.S.A. 1978 of the Workmen’s Compensation Act. It reads:
The right of any workman * * * for injuries occasioned to him by the negligence * * * of any person other than the employer * * * shall not be affected by the Workmen’s Compensation Act, but he * * * shall not be allowed to receive payment or recover damages therefor and also claim compensation from the employer * * *. [Emphasis added.]
Plaintiff’s claim against Gonzales for personal injuries was not affected by the Workmen’s Compensation Act. Plaintiff was free to sue Gonzales. However, plaintiff was not allowed to recover damages from Gonzales for personal injuries and also recover “compensation” from defendants. Plaintiff sued defendants for medical expenses, and medical expenses are “compensation.” Schiller v. Southwest Air Rangers, Inc., 87 N.M. 476, 535 P.2d 1327 (1975), Justice Oman dissenting. I agree with Justice Oman.
Schiller should be reconsidered in light of the following cases not heretofore cited, Valdez v. McKee, 76 N.M. 340, 414 P.2d 852 (1966); Martinez v. Webster Brothers Wholesale Produce Co., 69 N.M. 375, 367 P.2d 545 (1961); Garcia v. New Mexico State Highway Department, 61 N.M. 156, 296 P.2d 759 (1956), and the following statutory provisions.
Section 52-l-30(A) provides that: Compensation shall be paid by the employer to the workman in installments.
This section does not include medical expenses.
Section 52-1-49 provides for furnishing medical benefits to workmen after injury. No reference is made to “compensation.” Section 52-1 — 41 and succeeding sections, except § 52-1 — 46 provide for “compensation benefits.” No reference is made to “medical benefits.”
Section 52-1 — 46, Compensation benefits for death, provides that if there are eligible or no eligible dependents, compensation includes funeral expenses and expenses for medical and hospital services. This is the only section in the Act wherein medical expenses are “compensation.” No such reference appears when compensation results from injuries. The legislative intent makes this distinction. To judicially declare otherwise is not appropriate where legislative intent is clear. If Schiller is not overruled, the only solution to this perplexing problem is a legislative enactment that determines whether or not “compensation” includes “medical expenses.”
Presently, plaintiff shall not be allowed to recover damages for personal injuries from Gonzales, a third person, and also recover medical expenses from defendants. Plaintiff recovered no damages from Gonzales. Therefore, plaintiff is entitled to recover for “medical benefits” to be furnished by the defendants. If plaintiff is entitled to recover “medical benefits,” he is entitled to attorney fees. Schiller, supra.
The confusion that exists in this area of the law arises out of a misconstruction of § 52-1-56(0). It says that a workman “shall not be allowed to receive payment or recover damages" from a third person. In Security Insurance Co. of Hartford v. Chapman, 88 N.M. 292, 296, 540 P.2d 222 (1975), the court said:
This court has held that once an employee has recovered a judgment against a third-party tortfeasor, that employee may not thereafter claim compensation for the same injury. * * * [Emphasis added.]
Reliance is had on Castro v. Bass, 74 N.M. 254, 392 P.2d 668 (1964) and White v. New Mexico Highway Commission, 42 N.M. 626, 83 P.2d 457 (1938). In Castro, Justice Moise said:
[A]s was said in Kandelin v. Lee Moor Contracting Co., supra, [37 N.M. 479, 24 P.2d 730 (1933)] § 59-10-25, N.M.S.A. 1953 [§ 52-l-56(C)] is intended to deny an injured workman both compensation from his employer and a recovery from the third party, and if he has collected from the negligent party causing the injury he cannot thereafter recover compensation. [Emphasis added.] [74 N.M. 258, 392 P.2d 667.]
White is replete with authority that if a workman first receives or obtains damages from a third person, the workman cannot thereafter obtain compensation from his employer. In other words, the collection of damages from a third person by way of judgment or the receipt of payment is a prerequisite to a bar of obtaining compensation from an employer in order to avoid double recovery. The fact that a workman obtains a judgment but does not receive, recover, or collect damages, does not bar the right to recover compensation. It is the equivalent of a judgment for defendant. Where a judgment is rendered for defendant, entered after a jury trial, no one who has “received payment or recovered damages,” can also claim compensation. Brown v. Arapahoe Drilling Company, 70 N.M. 99, 370 P.2d 816 (1962).
In the instant case in which plaintiff obtained a judgment from Gonzales for zero damages, plaintiff had the right to seek compensation.
The summary judgment should be reversed.