(dissenting).
{17} I respectfully dissent. I continue to believe that Judge Pickard, who concurred in part and dissented in part from the Court of Appeals opinion in Salazar v. Torres, 2005-NMCA-127, 138 N.M. 510, 122 P.3d 1279, cert. granted, Salazar v. Torres, 2005-NMCERT-011, 138 N.M. 587, 124 P.3d 565 (Nov. 7, 2005), had the better view. She concluded “that a worker who wishe[s] to bring a Delgado [v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148] claim against the employer should have to forego the benefits provided by the Workers’ Compensation Act,” at least temporarily. Torres, 2005-NMCA-127, ¶ 36, 138 N.M. 510, 122 P.3d 1279 (Pickard, J., dissenting).
{18} Judge Pickard grounded her analysis in Torres in a belief that the Court of Appeals’ majority opinion “tips [the balance achieved in the Workers Compensation Act] entirely to the side of the worker, contrary to the mandate of NMSA 1978, § 52-5-1 (1990) (providing that the Act is not to be read in favor of one side or the other, workers or employers), by allowing a worker to obtain the expeditious payment of benefits without giving up anything.” Torres, 2005-NMCA-127, ¶ 34, 138 N.M. 510, 122 P.3d 1279 (Pickard, J., dissenting). The majority opinion of this Court in connection with Mr. Luna’s claim before the Workers Compensation Administration for a partial lump-sum payment to pay debts does not tip the balance quite so far as the Court of Appeals opinion in Torres would have done. See Torres, 2005-NMCA-127, ¶ 28, 138 N.M. 510, 122 P.3d 1279. Nevertheless, I remain uncomfortable with the balance the majority opinion does strike.
{19} The majority opinion in this appeal distinguishes a lump-sum payment of all future periodic benefits under NMSA 1978, Section 52-5-12(B) (1990) from a partial lump-sum payment of benefits for purposes of paying debts under NMSA 1978, Section 52-5-12(C) (1990) and, perhaps, from periodic indemnity payments that do not represent a final resolution of the compensation claim. The statute under which Mr. Luna applied for a partial lump-sum payment does have separate parts, one of which authorizes a lump-sum payment for all periodic future benefits and another, authorizing a partial lump-sum payment for debts. See § 52-5-12(B), (C). I do not see much difference between accepting a full or a partial lump-sum payment of benefits for purposes of determining whether the receipt of either type of payment indicates a worker has made a conscious choice to prove a claim for workers’ compensation rather than a claim in tort. See Romero v. J.W. Jones Const. Co., 98 N.M. 658, 651 P.2d 1302 (Ct.App.1982). In Romero, the Court of Appeals described compensation claims and tort claims as “inconsistent remedies.” Id. at 661, 651 P.2d at 1305. The question is whether a worker has “made a choice of’ one remedy rather than the other. Id.
{20} We certainly can say, in evaluating the effect of receiving a lump-sum settlement of all future benefits, under Section 52-5-12(B), that the compensation claim has been resolved by judgment. Maj. Op., ¶¶ 24, 27. Yet, the pursuit of a partial lump-sum settlement for purposes of payment of debts would seem to be a resolution of a part of the claim and thus to be vulnerable to an argument that a choice of significance has been made.
{21} Section 52-5-12(A) makes it clear that lump-sum payments, whether partial or full, are disfavored, and that they are disfavored for similar reasons, that is they are inconsistent with the Legislature’s view that periodic payments are in the worker’s best interests. Because such payments are disfavored, I would have thought that in seeking either type, a worker was making a choice of significance. Further, although it is a small point, both Section 52-5-12(B) and (C) refer to the worker as electing to receive lump-sum payments. If Romero was describing a factual determination, whether a worker chose a remedy, I would think both Mr. Salazar and Mr. Luna might be viewed as having done so.
{22} Nevertheless, I think all we need to decide in this appeal is that the award of a partial lump-sum payment for debts was premature. I would reverse the Workers’ Compensation Judge’s award of a partial lump-sum payment for debts and remand with directions to defer further action until the tort claim has been resolved. See Eldridge v. Circle K Corp., 1997-NMCA-022, ¶ 26, 123 N.M. 145, 934 P.2d 1074. I believe that in resolving this appeal, the majority has not achieved the balance the Legislature anticipated in enacting Section 52-5-1. My colleagues being of a different view, I respectfully dissent.