REDHOUSE V. PUBLIC SERV. CO., 1988-NMCA-034,
107 N.M. 389, 758 P.2d 803 (Ct. App. 1988)
Robertson Redhouse, Plaintiff-Appellant,
vs.
Public Service Company of New Mexico, a New Mexico
Corporation, Defendant-Appellee. Michael Jacquez,
Plaintiff-Appellant. v. Public Service Company
of New Mexico, a New Mexico Corporation,
Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1988-NMCA-034, 107 N.M. 389, 758 P.2d 803
Appeal from the District Court of San
Juan County, James L. Brown, Judge
Petition for Writ of Certiorari Denied
June 24, 1988
CHARLES R. FINLEY, WARNER & FINLEY,
Albuquerque, New Mexico, Attorneys for Plaintiffs-Appellants
BARBARA ALBIN, LARRY HEYECK, KELEHER
& McLEOD, P.A., Albuquerque, New Mexico, Attorneys for Defendant-Appellee
{1} Plaintiffs appeal the
dismissal of their worker's compensation claims. The appeals were consolidated
pursuant to our first calendar notice. Plaintiffs' brief-in-chief raises two
issues on appeal: (A) whether their suits were properly dismissed as premature,
and (B) whether their suits were properly dismissed as moot. Plaintiffs raised
a third issue concerning attorney fees in their docketing statements; however,
this issue has been incorporated into plaintiffs' second issue. In resolving
this consolidated appeal, we need only resolve the second issue.
{2} Plaintiffs assert that
their claims are not moot for two reasons: (1) that attorney fees are unresolved
in both cases, and (2) that defendant improperly credited its payment of paid
accident leave toward its liability for worker's compensation benefits. Jacquez
also argues that his suit was not moot because there was an unpaid medical bill
still at issue. We affirm the dismissal of both claims to establish the right
to compensation, but reverse as to Jacquez's claim for payment of the medical
bill.
{3} Redhouse was injured on
February 14, 1985, and Jacquez was injured on October 1, 1984. Both received
paid accident leave for a short period of time after their injuries. Paid
accident time is equivalent to the worker's full-time wage. It is paid in lieu
of worker's compensation benefits until defendant knows whether an employee
will be out for an extended period of time,
{*390}
in which case the employee will receive a worker's compensation benefits.
The payroll department continues to pay accident leave until the accounts
payable department starts paying worker's compensation benefits. The employee's
supervisor codes the injured employee's time slips to indicate that the
employee is receiving paid accident leave.
{4} At the discretion of the
supervisor, the employee may receive supplemental income in addition to
worker's compensation benefits. Supplemental income is the difference between
worker's compensation and an employee's regular salary. Supplemental income can
continue for up to five months from the employee's injury, but any paid
accident leave is credited toward supplemental income.
{5} Redhouse began receiving
worker's compensation benefits on March 4, 1985, at an incorrect weekly rate.
He also received supplemental income from March 4 until July 13, 1985. Jacquez
began receiving worker's compensation benefits on November 5, 1984, also at an
incorrect weekly rate. Jacquez also received supplemental income from November
5, 1984 until March 2, 1985. Plaintiffs' attorney formally informed defendant,
by separate letters on March 5th and 6th, of the discrepancy in plaintiffs'
weekly compensation amounts. Defendant responded by letter dated March 10,
1986, indicating that it would review plaintiffs' payroll histories.
Plaintiffs' complaints for worker's compensation were filed April 2, 1986.
{6} Defendant subsequently
moved for summary judgment. The trial court dismissed both cases on the ground
that they were prematurely filed. Summary judgment is proper when there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.
Westgate Families v. County Clerk of Los
Alamos, 100 N.M. 146,
667 P.2d 453 (1983);
see Goodman v. Brock, 83
N.M. 789,
498 P.2d 676 (1972). A reviewing court looks to the whole record and
views matters in the light most favorable to support a trial on the merits.
North
v. Public Serv. Co., 97 N.M. 406,
640 P.2d 512 (Ct. App. 1982). Also, the
decision of a trial court is to be upheld if correct for any reason.
H.T.
Coker Constr. Co. v. Whitfield Transp., Inc., 85 N.M. 802,
518 P.2d 782
(Ct. App.1974).
{7} Plaintiffs do not contest
defendant's assertion that it has paid all worker's compensation arrearages due
to its incorrect calculation of benefits. Accordingly, plaintiffs' claims for
these arrearages are moot.
See Patterson v. City of Albuquerque, 99 N.M.
632, 661 p.2d 1331 (Ct. App.1983). Plaintiffs also makes no claim that
defendant refused to pay these arrearages. Consequently, plaintiffs have no
right to attorney fees for these arrearages.
See NMSA 1978, §
52-1-54
(Orig. Pamp.) (revised in 1987).
See also Tafoya v. Leonard Tire Co., 94
N.M. 716,
616 P.2d 429 (Ct. App.1980). Plaintiffs' counter-argument, based on
Cromer
v. J.W. Jones Constr. Co., 79 N.M. 179,
441 P.2d 219 (Ct. App.1968),
overruled
on other grounds, Schiller v. Southwest Air rangers, Inc., 87 N.M. 476,
535
P.2d 1327 (1975), is misplaced. In
Cromer, the defendant believed it had
negotiated a lump sum settlement with the plaintiff and therefore had no duty
to pay installments. Accordingly, defendant refused to pay installments. The
facts are otherwise in this case. Hence, plaintiffs' assertion that their
claims are not moot due to undetermined attorney fees for the arrearages is
without merit.
{8} Plaintiffs' assertion
that defendant's act of crediting the paid accident leave toward its worker's
compensation liability precludes a determination that plaintiffs' claims are
moot is also without merit. We believe that defendant may properly credit its
payment of accident leave toward its worker's compensation liability. The
parties all agree that
Carter v. Mountain Bell, 105 N.M. 17,
727 P.2d
956 (Ct. App.1986), is not controlling here since defendant had no contractual
plan or policy of the type considered in
Carter. Moreover, plaintiffs do
not disagree with defendant's claim that its paid accident leave is nothing
more than an accounting label for an employee's straight time wages.
{*391} {9} Defendant's claim that paid accident leave is
actually another label for wages is supported by uncontradicted deposition
testimony of Vicki Abercrombie, defendant's worker's compensation
administrator. Ms. Abercrombie essentially testified that paid accident leave
is simply the continuation of an employee's straight time wages, paid by the
payroll department, and coded as such on the employee's time slips until it is
determined that the employee would be absent for an extended period, at which
time compensation is changed from actual wages to worker's compensation
benefits. Ms. Abercrombie also testified that the payment of accident leave was
in lieu of worker's compensation.
{10} We believe defendant
could properly credit its accident leave payments toward its worker's
compensation liability pursuant to Roybal v. County of Santa Fe, 79 N.M.
99, 440 P.2d 291 (1968). In Roybal, our supreme court determined that
the allowance of credit for payment of wages toward worker's compensation is
dependent upon the employer's intent. The supreme court indicated that whether
an injured employee really earned his wages was the most important measure of
the employer's intent. If the employee is paid his regular wage although he
does no work at all, it is a reasonable inference that the allowance is in lieu
of compensation. Id.
{11} In the instant case, we
have direct, uncontradicted testimony that the wages were paid in lieu of
worker's compensation benefits. It is also uncontested that the employees did
not perform any work while receiving paid accident leave. Based upon these
facts, defendant may properly credit its paid accident leave payments towards
its worker's compensation liability. See Roybal v. County of Santa Fe.
We find plaintiffs' assertion that the Roybal was limited to its facts
unpersuasive. Furthermore, plaintiffs' claim that the Roybal case was
considered unusual is of no aid here. Roybal is unusual because the
plaintiff's position as the elected sheriff established his right to his salary
and to worker's compensation benefits, even though he was unable to fully
perform his required duties after a serious car accident in the course of his
employment. Also, plaintiffs' reliance on Hathaway v. New Mexico State
Police, 57 N.M. 747, 263 P.2d 690 (1953), is misplaced. In Hathaway,
the supreme court considered whether the plaintiff's suit was premature since
the employer continued to pay plaintiff's salary and the salary was equivalent
to worker's compensation benefits. The supreme court declined to hold that
payment of salary suspended the right to sue under the Act. Thus, Hathaway
left the credit issue to be decided later in Roybal.
{12} We believe that Roybal
controls the resolution of these consolidated appeals. Defendant is entitled to
credit for its payment of paid accident leave toward its worker's compensation
liability. Since plaintiffs are not entitled to both paid accident leave and
worker's compensation under the facts of this case, claims to establish their
right to compensation are moot and were properly dismissed. See Patterson v.
City of Albuquerque; H.T. Coker Constr. Co. v. Whitfield Transp., Inc.
Therefore, no attorney fees are permitted for seeking additional recovery. See
Tafoya v. Leonard Tire Co.
{13} Finally, the parties
agree that the part of Jacquez's complaint seeking payment of a medical bill
was improperly dismissed by the trial court. We agree with the parties. See
Briscoe v. Hydro Conduit Corp., 88 N.M. 568, 544 P.2d 283 (Ct. App.1975).
Hence, the trial court is reversed to the limited extent that Jacquez may seek
payment of the medical bill. However, since Jacquez has yet to establish his
right to medical expenses, this court cannot award him any attorney fees. Cf.
Schiller v. Southwest Air Rangers, Inc.
{14} For the foregoing
reasons, we affirm the dismissal of plaintiffs' claims to establish their right
to worker's compensation, but reverse the dismissal oft that part of Jacquez's
claim seeking payment of the medical bill. Should the trial court determine
that defendant is liable for the medical bill, then it should consider the
appellate efforts of Jacquez's attorney to preserve the claim. We deem oral
argument unnecessary. {*392} Garcia
v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct. App.1977).
WE CONCUR: MINZNER, Judge, APODACA, Judge.