Roybal v. Chavez Concrete & Excavation Contractors, Inc.

696 P.2d 1021, 102 N.M. 428
CourtNew Mexico Court of Appeals
DecidedFebruary 28, 1985
Docket7777
StatusPublished
Cited by19 cases

This text of 696 P.2d 1021 (Roybal v. Chavez Concrete & Excavation Contractors, Inc.) 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
Roybal v. Chavez Concrete & Excavation Contractors, Inc., 696 P.2d 1021, 102 N.M. 428 (N.M. Ct. App. 1985).

Opinion

OPINION

ALARID, Judge.

Chavez Concrete & Excavation Contractors, Inc., and Rockwood Insurance Company (defendants) appeal the decision of the trial court in favor of Santiago Roybal (plaintiff). In their appeal defendants raise two issues: first, that the court’s judgment, which granted plaintiff full worker’s compensation benefits for the period required by Section 52-1-43 of the Workmen’s Compensation Act, NMSA 1978, Sections 52-1-1 to -69 (Orig.Pamp. and Cum. Supp.1984), was in conflict with the court’s earlier findings of fact, and, second, that credit should have been given to defendants for pre-judgment overpayments. We find the first issue to have merit, and we reverse and remand for entry of a new judgment which conforms to the court’s findings. Upon remand, the trial court is to decide the credit issue identified in this opinion.

FACTS

Plaintiff was injured while working as a cement finisher on May 21, 1980, when he fell half the way down a 75-foot stairway. As a result of the fall, plaintiff fractured his ribs and injured his knee and underwent surgery to repair his knee the next day. He had two more surgical procedures on his leg, the last occurring in December of 1980. Plaintiff's surgeon, Dr. Barry Marón, testified that he was not totally disabled after the third surgery, but rather suffered from a permanent fifteen to twenty percent impairment of his knee. This lawsuit involves only the knee injury.

Plaintiff was paid total temporary disability from the date of the accident to September 10, 1982, the date when defendants reduced plaintiff’s compensation to $28.01 — fifteen percent of the maximum compensation rate. Suit was filed on January 15, 1982 for medical transportation expenses. After the reduction of benefits, the complaint was amended to contest the reduction.

After trial, the court found that “[a]s a natural and direct result of his left knee injury, Plaintiff has a 15-20% impairment (loss of use) of the left leg between the knee and ankle.” The trial court further concluded that “[pjlaintiff’s sole injury was to a scheduled member * * *.” Defendants then moved to amend conclusion of law number eight to reflect the percentage — either fifteen or twenty percent — of the scheduled member award. The trial court reserved judgment on this motion, although it indicated at the hearing on this motion that it believed its intent was to keep the fifteen to twenty percent impairment. At the hearing on attorney fees, conducted after entry of the court’s findings and conclusions, defendants moved orally for an award of credit for prior over-payments. The trial court denied this motion for the reason that it was not presented to the court earlier and, thus, not preserved. Defendants then moved for a rehearing on this issue. The court never acted on this motion. On appeal, the parties proceed on the assumption that the unruled on motion was denied by operation of law. Without considering the propriety of the assumption, we proceed on the same basis.

The court’s judgment directed that plaintiff should recover the full compensation benefits for the maximum number of weeks allowable on the schedule for injuries to a leg between a knee and an ankle from September 10, 1982, pursuant to Section 52-l-43(A)(31).

DISCUSSION

I. A JUDGMENT, WHICH CONFLICTS WITH THE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW, MUST BE REDRAFTED TO CONFORM.

Defendants contend that the trial court’s findings and conclusions generally, and particularly numbers sixteen and seventeen and conclusion number eight, conflict with the court’s judgment. Finding sixteen declared that the knee injury left plaintiff with “a 15-20% impairment (loss of use) of the left leg between the knee and ankle.” Finding seventeen determined that plaintiff had no other separate and distinct injury to any other part of his body. In conclusion eight, the trial court states that plaintiff’s recovery is set forth in the schedule, plus total temporary disability from the date of the accident to December 22, 1980.

Section 52-l-43(B) provides that for a partial loss of use of one of the body members or physical functions listed in the schedule, “the workman shall receive compensation computed on the basis of the degree of such partial loss of use, payable for the number of weeks applicable to total loss or loss of use of that body member * * *.” Id. (emphasis added).

The trial court’s finding number sixteen of fifteen to twenty percent loss of use effectively compels the trial court to order a judgment accordingly. See Sachs v. Board of Trustees of Town of Cebolleta Land Grant, 89 N.M. 712, 557 P.2d 209 (1976). The judgment ordering payment of 100% of the amount of the compensation rate is in conflict with the court’s findings. When a finding supported by substantial evidence conflicts with an opinion, the finding prevails. In Re Will of Carson, 87 N.M. 43, 529 P.2d 269 (1974). The testimony of Dr. Marón supported the finding as to partial loss of use and the finding on the absence of a separate and distinct impairment to another part of the body.

This finding also conflicts with conclusion number eight, which grants recovery as set out in the schedule. The section cited, Section 52-l-43(A)(31), contemplates that defendant receive compensation for total loss of use. The provision for a percentage payment for a partial loss of use is contained in Section 52-l-43(B). Because the finding also prevails over a conflicting conclusion, In Re Will of Carson, the finding of only a percentage of impairment must prevail.

Therefore, the finding must prevail and this portion of the trial court’s judgment which awards full compensation for 130 weeks is reversed and remanded with directions to vacate the order and to enter judgment for compensation based on a specific percentage of loss of use as the “degree of such partial use,” see Section 52-1-43(B), must be determined in order to compute the monetary amount of compensation to which plaintiff was entitled. Thus, upon remand, the trial court is directed to delete “15-20%” from its finding sixteen and substitute a specific percentage amount. A trial court, when requested, must find one way or another on a material fact issue. Aguayo v. Village of Chama, 79 N.M. 729, 449 P.2d 331 (1969).

However, a further modification of the judgment is required. In its conclusion number eight, the trial court determined that the healing period ended on December 22,1980. We read this as a finding of fact. See Clark v. Duval Corp., 82 N.M. 720, 487 P.2d 148 (Ct.App.1971). In the court’s judgment, the healing period can only be interpreted as ending on September 10, 1982. Defendants do not challenge this finding; neither does plaintiff, who reminds us that the district court findings must be accepted as true. Unless findings are directly attacked, they are the facts on appeal. Wood v. Citizens Standard Life Insurance Co., 82 N.M. 271, 480 P.2d 161 (1971).

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Bluebook (online)
696 P.2d 1021, 102 N.M. 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roybal-v-chavez-concrete-excavation-contractors-inc-nmctapp-1985.