Martinez v. Ralph Johnson Rig, Inc.

OPINION LOPEZ, Judge. Plaintiff-appellant brought this action under the Workmen’s Compensation Act, § 59-10-1, et seq., N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974) for a determination of disability and for medical benefits. The trial court extended the period of disability and granted medical benefits but denied an award of attorney’s fees. The workman appeals from the court’s denial of attorney’s fees. We reverse. The question presented in this appeal is whether attorney’s fees should have been awarded for services rendered following the entry of the Supplemental Judgment. Section 59-10-23(E), N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1, 1974) states: E. In all actions arising under . where the jurisdiction of the court is invoked to determine the question whether the claimant’s disability has increased or diminished, and the claimant is represented by an attorney, the court shall determine and fix a reasonable fee for the services of claimant’s attorney only if the claimant is successful in establishing that his disability has increased [Emphasis added] The question under this statutory section is what constitutes success in establishing that the workman’s disability has increased. Segura v. Jack Adams General Contractor, 64 N.M. 413, 329 P.2d 432 (1958) is helpful in defining an increase in disability, and should be extended to apply to this case. Although Segura, supra, basically dealt with whether the court had jurisdiction to enter its order, the Court did discuss what constituted an increase in disability, quoting from Corvi v. J. R. Crowe Coal & Mining Co., 119 Kan. 244, 237 P. 1056 (1925) as follows: “While in one sense the disability has remained constant, it has increased in the sense that it will continue to the end of the period for which the statute allows compensation, three years longer than the district court last predicated. This being true, the court concludes that plaintiff’s disability has increased, within the meaning of the statute.” Segura 64 N.M. at 417-418, 329 P.2d at 434. In the instant case plaintiff received as a result of the first hearing, an award of temporary partial disability at the rate of 30% for approximately 82 weeks. As a result of this action, plaintiff was awarded an additional 371 weeks at the rate of 22% permanent partial disability. Even though the percentage of plaintiff’s disability was decreased in this second hearing, the term of the disability was extended and the total compensation received by the workman was increased. As a result of the second hearing the workman was “successful in establishing that his disability has increased” within the meaning of § 59-10-23(E), supra, in that the term of his disability was extended and he received an award not provided by the original judgment. Plaintiff’s attorney should be awarded attorney’s fees for his services under § 59-10-23(E), supra. Therefore, we reverse the trial court’s judgment denying attorney’s fees and remand for an award of same in accordance with the Workmen’s Compensation Act, and for proceedings consistent with this opinion. Further, plaintiff is awarded $1,500 for the services of his attorney on this appeal. IT IS SO ORDERED. HERNANDEZ, J., concurs. SUTIN, J., dissents.