Sena v. Gardner Bridge Co.

OPINION SUTIN, Judge. On August 15, 1975, judgment was entered that plaintiff was entitled to one week of compensation resulting from two weeks of temporary total disability. Disability had ended August 12, 1974, one year before the judgment was entered. Plaintiff appealed the 1975 judgment to this Court and it was affirmed by Memorandum Opinion. Sena v. Gardner Bridge Co., No. 2253, decided April 20,1976. Judgment on the mandate was entered May 24, 1976. This judgment was final. On May 4, 1977, pursuant to § 52-1-56(A), N.M.S.A.1978, which relates to an increase of disability, plaintiff moved the court to review this case, hear testimony of attending physicians and make new findings and conclusions. The reasons given were: 1.More than six months elapsed from the time the court entered judgment. 2. Plaintiff had an operation to correct an injury on his back within the past six months as a direct result of the aforesaid accident and injury. 3. Plaintiff has, in fact, been totally and temporarily or totally and permanently disabled for the past two years. This motion did not allege an increase of disability. On May 3, 1978, a year later, plaintiff filed an amended motion in which plaintiff alleged that disability had increased since the initial hearing. On June 2, 1978, plaintiff’s motion was denied and plaintiff appeals. We affirm. In the original 1975 judgment, temporary total disability had ended prior to the entry of judgment. “Temporary disability” means “that which lasts for a limited time only while the workman is undergoing treatment.” Lane v. Levi Strauss & Co., 92 N.M. 504, 590 P.2d 652, 654 (1979). A workman who has completely recovered from an accidental injury is no longer disabled as defined by law. At the time judgment was entered, plaintiff was wholly able to perform the usual tasks in the work he was performing at the time of his injury, and wholly able to perform any work for which he was fitted by age, education, training, general physical and mental capacity and previous work experience. Section 52-1— 24, N.M.S.A.1978. Ordinarily, following a judgment, § 52-l-56(A) allows a workman to seek an increase in compensation “if it shall appear that the disability of the workman . has increased . . .” [Emphasis added.] We hold that a workman who is not disabled at the time judgment is entered cannot, thereafter, seek an increase of a non-existent disability. Neither can a non-existent disability revive itself to become partial or total disability. Plaintiff argues that when a judgment is entered and any compensation is paid, this payment, not disability, is the only requirement necessary to seek an increase in compensation; that § 52-1-28, N.M.S.A.1978, which states the proof necessary to establish a workman’s compensation claim, does not require a finding of permanent injury or disability at the time of trial. We disagree. Section 52-l-28(A)(3) states that one of the essential elements of a workmen’s compensation claim is that “the disability is a natural and direct result of the accident.” However, for total or partial disability, “the workman shall receive, during the period of that disability,” workmen’s compensation benefits as provided by §§ 52-1-41 and 52-1-42, “but in no event to exceed a period of [600] weeks.” The judgment entered shall state “the amount then due, and shall also contain an order upon the defendants for the payment of the workman, at regular intervals during the continuance of his disability, the further amounts he is entitled to receive. . . . ” [Emphasis added.] Section 52-l-38(A). At the time of trial, the court must find whether plaintiff’s injury resulted in a disability that terminated before judgment was entered or plaintiff’s injury resulted in total or partial disability in existence at the time judgment was entered. If plaintiff’s injury resulted in a pre-judgment terminated disability, a workman is paid “the amount then due.” If plaintiff’s injury resulted in a post-judgment disability, a workman is also paid compensation “at regular intervals during the continuance of his disability.” A judgment that provides for “payment to the workman, at regular intervals during the continuance of his disability” is not a “Final Judgment.” Martinez v. Earth Resources Co., 90 N.M. 590, 594, 566 P.2d 838 (Ct.App.1977), Sutin, J., specially concurring. Where, however, the judgment does not contain an order for further payments, disability having terminated, the judgment is final. Plaintiff now seeks to recover workmen’s compensation benefits, not an increase thereof, by expert medical testimony that as a medical probability, there is a causal connection between the accidental injury and disability by reason of surgery resulting therefrom. Section 52-1-28. This, plaintiff cannot do. The parties, causes of action, subject matter capacities in the 1975 judgment and recovery sought now are identical in all respects. The first judgment is a conclusive bar upon the parties as to every issue which either was or could have been litigated in the previous case. City of Santa Fe v. Velarde, 90 N.M. 444, 564 P.2d 1326 (1977). Three years have passed since the date of the original judgment and two years after judgment on the mandate. Plaintiff has been traveling down the wrong road for an inexcusably long period of time and should not be prejudiced thereby if plaintiff can find the right road to travel. If plaintiff believes that he can show a causal connection between the accidental injury and subsequent surgery, plaintiff may, perhaps, have a remedy by seeking relief from the judgment. See Phelps Dodge Corp. v. Guerra, 92 N.M. 47, 582 P.2d 819 (1978). Affirmed. IT IS SO ORDERED. ANDREWS, J., concurs. HENDLEY, J., dissenting.