LEA CTY GOOD SAMARITAN VIL. v. Wojcik

766 P.2d 920, 108 N.M. 76
CourtNew Mexico Court of Appeals
DecidedNovember 17, 1988
Docket10331
StatusPublished

This text of 766 P.2d 920 (LEA CTY GOOD SAMARITAN VIL. v. Wojcik) 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
LEA CTY GOOD SAMARITAN VIL. v. Wojcik, 766 P.2d 920, 108 N.M. 76 (N.M. Ct. App. 1988).

Opinion

766 P.2d 920 (1988)
108 N.M. 76

LEA COUNTY GOOD SAMARITAN VILLAGE and Zurich-American Insurance Companies, Plaintiffs-Appellees,
v.
Gary Lee WOJCIK, Claimant-Appellee,
v.
Fabian CHAVEZ, Superintendent of Insurance for the State of New Mexico and the New Mexico Subsequent Injury Fund, Defendants-Appellants.

No. 10331.

Court of Appeals of New Mexico.

November 17, 1988.

*923 Richard E. Olson, Thomas D. Haines, Jr. Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, for defendants-appellants.

James C. Ritchie, Gregory P. Smith, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for plaintiff-appellee Zurich-American Ins. Co.

Lawrence D. Hanna, Hanna & LaBree, Hobbs, C. Barry Crutchfield, Templeman and Crutchfield, Lovington, for claimant-appellee.

OPINION

DONNELLY, Chief Judge.

The New Mexico Subsequent Injury Fund appeals from a judgment apportioning liability between the Fund and Lea County Good Samaritan Village and its insurance carrier, Zurich-American, for worker's compensation benefits payable to claimant. We discuss: (1) whether the trial court erred in denying the Fund a reduction for monies previously paid to claimant in settlement of a claim for a worker's prior injury involving the same bodily member or function; (2) whether the trial court's findings involving medical expenses paid by an employer and its carrier on behalf of claimant are supported by substantial evidence; and (3) whether the trial court erred in awarding interest against the Fund. We affirm in part and reverse in part.

Claimant was injured in January 1983 in a work-related accident while he was employed at the Roswell YMCA. As a result of this accident claimant sustained serious and permanent neurological injuries. Following the filing of a worker's compensation action, claimant entered into a lump sum settlement with the YMCA and its insurer. The district court approved the lump sum award in the amount of $110,000.00, which included $22,000.00 for attorney fees; however, the judgment did not contain any express finding specifying the amount or percentage of claimant's disability or the amount allocated for compensation, vocational rehabilitation benefits, or accrued and future medical expenses.

In May 1984 claimant was hired by the Lea County Good Samaritan Village (Good Samaritan) as a dietary aide and porter. Good Samaritan knew that claimant had been previously injured and that he had suffered neurological impairment but was not fully informed concerning the extent of his prior disability. In September 1984 while working with the Good Samaritan maintenance crew, claimant fell from a roof. The injuries sustained by claimant in the fall were to the same function and bodily member that had been affected in his initial injury. On April 30, 1986, following his second accident, claimant filed a certificate of preexisting physical impairment reciting that he had a 60% disability of which 55% was attributable to the preexisting disability resulting from his January 1983 prior injury. Thereafter, appellees Good Samaritan and Zurich-American filed a declaratory judgment action seeking adjudication of their liability under the Workers' Compensation Act for benefits owing to claimant and for apportionment of liability *924 of any benefits owing between themselves and the Fund. Claimant answered and filed a cross-claim against the Fund seeking the award of additional worker's compensation benefits.

After a trial on the merits the trial court adopted findings of fact and conclusions of law determining that claimant had sustained a second injury and was totally and permanently disabled. The trial court apportioned liability for claimant's disability, finding that the Fund was 90% liable and that Good Samaritan and Zurich-American were 10% liable for the payment of compensation benefits. The trial court also (a) determined the Fund was not entitled to any reduction on account of benefits paid claimant pursuant to the settlement of his previous claim; (b) ordered the Fund to reimburse Good Samaritan and Zurich-American 90% of the $25,873.56 in medical expenses paid by the employer and its carrier; and (c) ordered post-judgment interest against the Fund then, by amended judgment, attempted to delete such interest.

I. CLAIM OF REDUCTION

The Fund contends that it is entitled to a reduction for monies previously paid by the Roswell YMCA and its insurance carrier to claimant in settlement of the first worker's compensation claim, which involved an injury to the same members and functions involved in claimant's subsequent injury.

The trial court denied any reduction on behalf of the Fund and adopted a finding that the evidence presented by the Fund was insufficient to allow the court to apply any reduction. The Fund contends this ruling was in error and that the court's failure to allow reduction will result in an award of duplicate benefits to claimant under both the Workers' Compensation Act and the Subsequent Injury Act (SIA). See NMSA 1978, §§ 52-1-1 to -2-13 (Repl. Pamp. 1987).

The Fund introduced evidence indicating that at the time of the settlement of the first suit, claimant had been paid 33 weeks of compensation benefits for temporary total disability. The Fund also introduced evidence consisting of a memorandum by the insurance carrier for the Roswell YMCA concerning the lump sum settlement with claimant. The memorandum did not itemize the component amounts included in the total settlement. Instead, the memorandum referred only to the $110,000 settlement and mentioned that the agreement included payments for medical benefits and compensation benefits without mentioning the sum of $22,000 in attorney fees which was part of the settlement. A witness for the carrier that negotiated the settlement conceded that the memorandum was intended for administrative purposes and that there was nothing in the file indicating the existence of any written agreement between the parties specifically apportioning the settlement.

Where a deduction is sought under Section 52-1-47(D), the burden of proof to establish a right to a deduction is ordinarily shared by the second employer and the Fund. Here, however, Good Samaritan withdrew its request for credit at the beginning of trial. Under these circumstances the Fund had the burden of proof to establish both its right to a reduction and the amount of the reduction. See § 52-1-47(D). A party alleging the affirmative of an issue bears the burden of proof thereon. Romero v. Cotton Butane, Inc., 105 N.M. 73, 728 P.2d 483 (Ct.App. 1986); Smith v. Trailways, Inc., 103 N.M. 741, 713 P.2d 557 (Ct.App. 1986).

Section 52-1-47(D) states:

[T]he compensation benefits payable by reason of disability caused by accidental injury shall be reduced by the compensation benefits paid or payable on account of any prior injury suffered by the worker if compensation benefits in both instances are for injury to the same member or function or different parts of the same member or function or for disfigurement and if the compensation benefits payable on account of the subsequent injury would, in whole or in part, duplicate the benefits paid or payable on account of such prior injury.

The SIA renders the employer liable only for the amount of disability attributable *925

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Bluebook (online)
766 P.2d 920, 108 N.M. 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lea-cty-good-samaritan-vil-v-wojcik-nmctapp-1988.