Bower v. Western Fleet Maintenance

726 P.2d 885, 104 N.M. 731
CourtNew Mexico Court of Appeals
DecidedSeptember 4, 1986
Docket8653
StatusPublished
Cited by8 cases

This text of 726 P.2d 885 (Bower v. Western Fleet Maintenance) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bower v. Western Fleet Maintenance, 726 P.2d 885, 104 N.M. 731 (N.M. Ct. App. 1986).

Opinion

OPINION

ALARID, Judge.

Defendants appeal from the judgment of the district court, which awarded plaintiff worker’s compensation for a ninety-nine percent permanent disability, and an order awarding payment of certain costs incurred by plaintiff. On appeal, defendants raise five issues:

I. Whether the district court’s finding that plaintiff is ninety-nine percent permanently disabled is supported by substantial evidence.

II. Whether the district court erred in concluding and ordering that defendants are entitled to a one percent credit for overpayment of past compensation benefits.

III. Whether the district court erred in limiting credit to defendants for overpayment of compensation benefits to the period after August 20, 1984.

IV. Whether the district court’s award of $5,000 to plaintiff as attorney fees was an abuse of discretion; and

V. Whether the district court erred in awarding certain costs to plaintiff.

Finding no error by the district court, we affirm the trial court on all issues raised.

PROCEDURAL HISTORY

Plaintiff Timothy A. Bower was injured in a work-related accident in 1978 which rendered him a paraplegic, and he has been receiving total disability benefits since the date of the injury. Upon discovering that plaintiff had returned to work, defendants filed a motion to terminate benefits. Following a hearing on defendants’ motion, the trial court concluded that plaintiff's disability had not diminished or terminated. The trial court filed an order denying defendants’ motion.

Defendants appealed the trial court’s order, and this court held that the trial court erred in denying the motion and reversed the decision of the district court in a memorandum opinion. Bower v. Western Fleet, Ct.App. No. 8136 (Filed December 11, 1984). This court expressly recognized that plaintiff was partially, not totally, disabled, withholding any opinion concerning the percentage-extent of the disability.

After remand to the district court, defendants filed a motion for determination of plaintiffs disability pursuant to this court’s mandate. Based on the evidence presented at the first hearing, as well as that presented at the second hearing in May 1985, the trial court filed a judgment awarding plaintiff benefits for a ninety-nine percent permanent partial disability. The judgment also ordered that defendants be credited for overpayments made to plaintiff at the rate of one percent since August 20, 1984, which corresponds to the date that defendants filed their motion to terminate. Additionally, the court awarded plaintiff $5,000 as attorney fees, and in response to plaintiff’s motion to recover costs, the court ordered that defendants pay plaintiff $240 in challenged costs. The order regarding costs was filed after the notice of appeal; however, in the interests of judicial economy, we will consider defendants’ challenge to that order along with the other issues raised.

FACTS

Plaintiff is a twenty-five year old male who completed the eleventh grade; he has since earned his GED. In 1978, at the age of seventeen, he was employed as a mechanic’s helper by defendant Western Fleet. The job required that plaintiff travel around the state and maintain fleet vehicles. His duties included oil changes, tune-ups, brake jobs, safety checks and other minor maintenance work. This was the only meaningful employment that plaintiff had before his accident.

In January of 1978, plaintiff was severely injured in a work-related accident. The injury rendered him permanently paralyzed from the waist down, confining him to a wheelchair. Defendants have paid total disability (including all medical expenses, housing assistance and automobile modification expenses) since the date of the accident. From January 1978 until 1982, plaintiff was not employed in any capacity.

In May 1982, plaintiff began working as a wheelchair repairman for a medical supply company. Plaintiff worked a forty-hour work week, earning $4.00 per hour, and was able to perform the required duties of the job. He worked for the company from May to December of that year. However, in January and February of 1983, plaintiff was forced to miss work because of pressure sores. The pressure sores, which are caused by confinement to the wheelchair and which were aggravated by the mobility requirements of plaintiff’s job, required surgery followed by total bed rest for several weeks. The company terminated plaintiff’s employment upon his attempted return to work following this incident.

Seven months later, in October 1983, plaintiff began working at a hobby shop as a salesperson. His duties included retail sales, counting money, and responsibility for the cash drawer, as well as daily reports for the cash drawer. He also performed minor maintenance on model-scale motors, a service provided by the shop. Plaintiff worked in excess of forty hours per week, earning $4.25 per hour. The employer believed that plaintiff was a “very good” employee and had no problems as a salesperson, although he testified that plaintiff could not lift heavy objects, which was at times required by the job. The employer also acknowledged that, because the hobby shop had grown, an employee who was more knowledgeable in the field had been hired to replace plaintiff. (Plaintiff had voluntarily terminated his employment at the shop in June of 1984.)

Although plaintiff admitted that he was able to perform all of the tasks required of him by the employer, his physical impairment caused him to miss a considerable amount of time from work. During the approximately nine-month period that plaintiff worked at the hobby shop, he was forced to miss eight weeks because of pressure sores. Plaintiff also suffers from periodic kidney and bladder infections that require medical attention and occasional absences from work.

Plaintiff began working at an auto parts store the same month that he terminated his employment at the hobby shop. Plaintiff is a “counterman” (i.e. salesperson) at the store. His duties include waiting on retail customers, procuring parts for customers from the inventory, minor inventorying of parts, and minor bookkeeping chores. Plaintiff works eight hours per day, earning $4.50 per hour. Plaintiff is a good dependable employee who does his job well. However, the employer acknowledged that plaintiff’s disability has restricted him, but that plaintiff has “put up with” these restrictions. These restrictions require that plaintiff take more time to get a part for a customer or to seek assistance when retrieving a heavy part or one from the upper shelves of the store. Plaintiff also testified that these restrictions caused some customer dissatisfaction and “withdrawal.” However, the employer testified that the customer complaints concerning plaintiff’s limitations are few, that plaintiff is one of the better employees, and that plaintiff has assumed more responsibility (although not more duties) with the passage of time. .

In addition to the physical limitations which prohibit the plaintiff from performing all of the duties of a counterman, plaintiff has been forced to miss work due to illnesses and the need for periodic medical care.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Canas v. Driveline Holdings Inc.
New Mexico Court of Appeals, 2021
Fernandez v. Espanola Public School District
2005 NMSC 026 (New Mexico Supreme Court, 2005)
Fernandez v. Española Public School District
2004 NMCA 068 (New Mexico Court of Appeals, 2004)
Gillingham v. Reliable Chevrolet
1998 NMCA 143 (New Mexico Court of Appeals, 1998)
Trujillo v. Hilton of Santa Fe
851 P.2d 1065 (New Mexico Court of Appeals, 1993)
Feese v. U.S. West Service Link, Inc.
823 P.2d 334 (New Mexico Court of Appeals, 1991)
Quinones v. Santa Fe County
765 P.2d 1172 (New Mexico Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
726 P.2d 885, 104 N.M. 731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bower-v-western-fleet-maintenance-nmctapp-1986.