(concurring in part and dissenting in part).
I concur in affirmance of plaintiff’s judgment and dissent on the matter of plaintiff’s cross-appeal.
The trial court found that on October 28, 1976, plaintiff, 40 years old with an 8th grade education, employed by defendant as a field service man, suffered an accidental injury in the scope of his employment. Subsequently, plaintiff continued to perform his regular and usual tasks. Between October 28, 1976, and October 27, 1977, a period of one year, plaintiff lost 23 weeks from work for which defendant voluntarily paid plaintiff compensation benefits of $114.61 per week. As a result of the accidental injury, plaintiff became temporarily totally disabled as of October 27, 1977.
From October 27, 1977, through August 29, 1979, a period of 22 months, defendant paid plaintiff workmen’s compensation benefits of $114.61 per week, but failed to pay medical and prescription expenses of $504.16, and transportation expenses of $1,639.82. Plaintiff is a good candidate for rehabilitation, will require future hospital and medical care and is entitled to $4,500.00 in attorney fees.
The court concluded that from October 27, 1977, the date the total disability began, through August 29, 1979, the date plaintiff’s disability benefits were terminated, plaintiff was entitled to $142.59 per week instead of $114.61, and defendant was in arrears of $2,686.08, and from August 29, 1979, to April 7, 1980, defendant was in arrears of $4,420.29. Judgment was entered on May 6, 1980, in accordance with the decisions and defendant appealed. Plaintiff cross-appealed.
A. In workmen’s compensation cases this court can act as it desires.
In Rumpf v. Rainbow Baking Company, No. 4795, decided March 12, 1981, Sutin, J., dissenting, this Court held that in workmen’s compensation cases, it had jurisdiction to direct the deletion of “with prejudice” from a final judgment of a district court from which no appeal was taken, and, at the same time, held that an attorney, not the client, had the right to sue an employer for attorney fees. Certiorari was denied.
Employers and workmen are now in “a ding-dong battle” — “a fight in good earnest. Ding-dong is an onomatopoeic word reproducing the sound of a bell; and here the idea is that the blows fall regularly and steadily, like the hammer-strokes of a bell.” Brewer’s Dictionary of Phrase and Fable (1970), p. 322. I prefer to call it a “wingding battle” in which the workman and an attorney can fly to victory without wings. The normal perimeters for protection of workmen and attorneys have been extended.
B. Defendant’s requested findings and conclusions are irrelevant.
Defendant’s first point is that the trial court erred in refusing defendant’s requested findings and conclusions. Defendant’s requested findings seek judgment for defendant. Before defendant can move in this direction, it must show that the trial court’s findings are not sustained by substantial evidence so that plaintiff is not entitled to an award of compensation benefits; therefore, defendant’s requested findings and conclusions should have been adopted. If the trial court’s findings are sustained by substantial evidence, defendant’s requested findings and conclusions are irrelevant. Castillo v. Tabet Lumber Company, 75 N.M. 492, 406 P.2d 361 (1965). Absent a counterclaim, a judgment for and against a plaintiff cannot withstand logic and reason.
For related cases that involve a failure to make requested findings, see, Save-Rite Drug Stores v. Stamm, 58 N.M. 357, 271 P.2d 396 (1954); Owensby v. Nesbitt, 61 N.M. 3, 293 P.2d 652 (1956); Wiggs v. City of Albuquerque, 57 N.M. 770, 263 P.2d 963 (1953).
C. The trial court properly awarded plaintiff transportation expenses.
The trial court found that:
As a result of receiving medical treatment and medical evaluations for his job related injuries and aggravated injuries, plaintiff incurred transportation expenses in the amount of $1,639.82.
Defendant does not question plaintiff’s right to recover transportation expenses. Defendant claims only that this finding is not supported by any evidence.
The rule is established that transportation costs necessarily incurred in connection with medical treatment are compensable after proof of mileage, cost per mile and method of travel, even if the act, such as § 52-l-49(A), N.M.S1A. 1978, speaks only in terms of medical services and expenses. Moreau v. Zayre Corp., 408 A.2d 1289 (Me. 1979) (without regard to whether employer has authorized trips); Allor v. Belden Corp., 382 So.2d 206 (Ct.App.La.1980); Eskridge v. Goldman & Co., 598 S.W.2d 425 (Ark.App. 1980) (must show method of travel); Mosley v. Bank of Delaware, 372 A.2d 178 (Del. 1977); In re Snider’s Case, 334 Mass. 65, 134 N.E.2d 16 (1956); Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956) (even though dates of trips and services performed on each trip are unknown); Murry v. Southern Pulpwood Insurance Company, 136 So.2d 165 (Ct.App.La.1962) (at so much per mile); Dugas v. Houston Contracting Company, 191 So.2d 178 (Ct.App.La.1966) (itemize and prove them); Southall v. Kingsville Timber Company, 168 So.2d 424 (Ct.App.La.1964) (visitation alone is not proof); Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla.1964); 2 Larson’s Compensation Law, § 61.13(b) (1981); 99 C.J.S. Workmen’s Compensation § 226, p. 916 (1958).
Payment of transportation expense in Mobley was also a matter of first impression. The court said:
Considering the purposes of the Workmen’s Compensation Act and the benefits to be given injured employees by its terms, we conclude that travel expenses necessarily incurred in enjoying the medical benefits provided by the Act are an incident of medical care and treatment. Therefore, the employer-carrier must either furnish such transportation or pay claimant the reasonable actual cost thereof. [Id. 47.]
Defendant claims the court’s finding, supra, is not supported by evidence because (1) plaintiff never kept a record of his expenses on 91 round trips from San Ysidro, his home, to Albuquerque, location of doctors and hospital, ten of which were at defendant’s request; (2) plaintiff never billed defendant for costs; (3) no evidence appears of his actual costs, his costs per mile, or his total costs, i. e., whether he stopped over night or ate meals; (4) whether he used his car or borrowed someone elses. Defendant does not contend the doctor and hospital visits were not reasonably necessary.
Plaintiff testified that his wife drove him on these trips in his own car. He obtained evidence of the 91 trips from doctor and hospital bills. In mileage, the round trips are 106 miles. Of the 91 trips, 10 were visitations to defendant’s doctors, and other doctors he went to were on his own. Plaintiff never gave defendant a bill for these trips and never kept track of his costs on these trips.
Transportation expense was computed as follows:
91 trips at 106 miles per trip equals .. . 9,646 miles
17 cents per mile equals............. $1,639.82
Public employees are allowed 19 cents per mile for each mile traveled in a privately owned automobile. Section 10-8 — 4(D), N.M.S.A. 1978. Prior to 1980 it was 17 cents per mile. That which is fair and reasonable for public employees is fair and reasonable for injured workmen. It would be unreasonable for injured workmen to save gas and oil tickets for a period of years and try to estimate how much was used for each trip, produce the tickets in court and put on a guessing game at trial or estimate how many miles per gallon the car would use; then produce expert testimony or speculate on the amount of depreciation of the car during each trip.
To avoid a pandemonium of objections and argument in court, a fixed rate of 17 cents per mile for each mile traveled is fair and reasonable for transportation expenses incurred by an injured workman. If an employer is concerned about any probability of excessive expenses, he can provide transportation whenever necessary or require notice and report of each trip made during the time that compensation is paid the injured workman. If compensation payments are not made and suit is filed, an injured workman, of course, has no duty in this respect if request is made. An employer must be cautious in dealing with injured workmen, especially uneducated common laborers who are unprepared or unable to protect their rights under the Workmen’s Compensation Act. Every employer risks the payment of past compensation benefits, interest, attorney fees, expenses and costs in the trial and appellate courts. An employer can reduce the loss by investing the potential amount of the risk at a secured high interest rate.
The trial court properly awarded plaintiff transportation expenses.
D. The trial court’s findings and conclusions challenged were not erroneous.
Defendant claims that findings 5, 6, 7 and 17, and conclusions of law 2 and 3 are erroneous. I am unable to understand defendant’s position.
Summarized, these findings are that except for a 23 week period following his injury in October, 1976, until October 27, 1977, when plaintiff stopped working, plaintiff was able to perform his regular tasks and that the date of his disability commenced on or about October 27, 1977; that plaintiff became temporarily totally disabled on October 27, 1977.
The court concluded that plaintiff was totally disabled as of October 27, 1977, and plaintiff was entitled to benefits based upon the compensation rate applicable on the date of his disability which was October 27, 1977, and is entitled to arrearages for the same.
I assume that defendant seeks to have this Court find that the date of disability commenced on October 26, 1976, because the percentage of the average weekly wage for compensation was less in 1976 then in 1977. Sections 52-1-41 and 52-1-42, N.M. S.A. 1978. In 1976, the average weekly wage allowed plaintiff was $114.61 per week as compensation. In 1977, it rose to $142.59 per week.
The trial court found that from October, 1976, the date of the accidental injury, to October, 1977, except for 23 weeks of disability, plaintiff performed all of his usual tasks and was not disabled until October, 1977, when his work stopped because he was temporarily totally disabled. It necessarily follows that plaintiff was entitled to the increased weekly payment of $142.59.
Defendant is aware of the rule that the findings of fact, when supported by substantial evidence, cannot be disturbed on appeal. Defendant’s position is that the rule applicable is stated in Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977). Boone held that all reasonable inferences must be “indulged” in support of the judgment. Yet the evidence must be of such substance that facts will be established from which reasonable inferences may be drawn.
Defendant submits that the only reasonable inferences to be drawn is that plaintiff was disabled on October 26, 1976, because plaintiff suffered pain thereafter and did not perform his usual tasks; that to so hold is equivalent to taking words out of context in a sentence to get a desired meaning. What defendant seeks to do is draw inferences in its favor to the detriment of plaintiff. But we cannot “indulge” reasonable inferences against the judgment. We do so in support of the judgment. To reverse the rule of reasonable inferences that support the judgment is contra bonos mores (not in accordance with good manners).
The findings challenged were not erroneous.
E. Plaintiff’s cross-appeal should be affirmed in part and reversed in part.
Plaintiff, in his cross-appeal claims that he was permanently totally disabled so that he could seek a lump sum award and that the attorney fee awarded him was insufficient for services rendered in the trial court.
(1) Plaintiff is totally disabled permanently but not entitled to a lump sum settlement.
Plaintiff has been totally disabled since October 27, 1977, and was totally disabled through the time judgment was entered on May 6, 1980, a period of 30 months. Lane v. Levi Strauss & Co., 92 N.M. 504, 590 P.2d 652 (Ct.App.1979). Unquestionably, plaintiff is permanently disabled. On the definition of “temporary disability,” I add that which appears in Pyles v. Triple F. Feeds of Texas, Inc., 606 S.W.2d 146 (Ark.App.1980). Omitting authorities cited, it reads:
Temporary disability is defined as the healing period following an injury. It exists until the employee is as far restored as the permanent character of his injury will permit. Temporary disability is a separate and distinct disability from any permanent disability and may be compensated separately * * * * temporary total disability benefits are payable without interruption from the time of the injury to the time at which the degree of permanent disability is ascertainable. [Id. 148.]
On March 17, 1980, the court found that plaintiff became temporarily totally disabled on October 27, 1977. That finding is correct but the trial court failed to make a finding of plaintiff’s disability at the time of trial or at the time the decision was rendered.
This case should be remanded to the district court to make a finding whether plaintiff was temporarily or permanently disabled at the time of trial. The trial court omitted any reference to lump sum award.
Plaintiff requests this Court to give him a lump sum award. This cannot be done until the case is one of total permanent disability. Section 52-l-30(B), N.M.S.A. 1978. Even when this point is reached, to be granted a lump sum award rests within the discretion of the trial court. Lane, supra; Lamont v. New Mexico Military Institute, 92 N.M. 804, 595 P.2d 774 (Ct.App.1979). In effect, by its decision, the trial court exercised its discretion and denied plaintiff the right to a lump sum award.
Another reason plaintiff is not entitled to a lump sum award is that plaintiff did not petition the court for a lump sum award after hearing in which the court determined that it is a case of total permanent disability. Section 52-l-30(B).
If this case were remanded to the district court and a finding made of permanent total disability, then plaintiff could petition the court to award a lump sum in accordance with the statute.
In my opinion, the trial court found temporary total disability in order to avoid granting a lump sum award.
(2) Plaintiff is entitled to an increase in attorney fees awarded by the trial court.
Plaintiff is entitled to a reasonable attorney fee for services rendered by his lawyer in the trial court. His lawyer is not. I am sure that plaintiff is satisfied but the lawyer is not. I am sure the plaintiff did not request the lawyer to seek an increase in the amount awarded. I am sure the lawyer seeks an increase on his own. Nevertheless, in Rumpf, this Court allowed plaintiff’s lawyer to pursue an employer for an attorney fee. Upon what logical or reasonable basis is unknown.
The trial court found that plaintiff was entitled to a reasonable attorney fee but did not state any reason for this entitlement. The court did not consider the evidence presented in support of the amount of the fee. At least, the court did not so state in its decision. Where no reason is given, the court acts beyond the bounds of reason and abuses its discretion.
Based upon the evidence presented in support of a reasonable attorney fee, among other items, 131 hours were spent by the lawyer, success was had in the lawsuit which has a net value to plaintiff of $55,-000.00, plaintiff is entitled to an additional attorney fee of $2,500.00.
Because of a cross-appeal, plaintiff was compelled to file two separate briefs in this Court, both of them excellent finished products. Plaintiff’s lawyer should receive an attorney fee of $3,000.00 for services rendered in this appeal.