Benny v. Moberg Welding

• Decision Date: 28 June 2007
• Docket Number: No. 26,630.,26,630.
• Parties: Jared BENNY, Worker-Appellant, v. MOBERG WELDING and New Mexico Mutual Casualty Company, Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

167 P.3d 949

2007 NMCA 124

Jared BENNY, Worker-Appellant, v. MOBERG WELDING and New Mexico Mutual Casualty Company, Employer/Insurer-Appellees.

No. 26,630.

Court of Appeals of New Mexico.

June 28, 2007.

Certiorari Denied, No. 30,561, August 9, 2007.

Titus & Murphy Law Firm, Victor A. Titus, Farmington, NM, for Appellant.

Miller Stratvert, P.A., Robin A. Goble, Seth V. Bingham, Albuquerque, NM, for Appellees.

OPINION

BUSTAMANTE, Judge.

{1} After agreeing to a stipulated compensation order setting a ten percent impairment rating, Jared Benny requested temporary total disability benefits because his medical condition had worsened. His employer, Moberg Welding, objected because Benny had asked for and received a stipulated lump sum settlement pursuant to NMSA 1978, § 52-5-12 (2003). The Workers' Compensation Judge (WCJ) agreed with the Employer and granted summary judgment in its favor. Benny appeals and we reverse.

{2} The WCJ's order on Benny's complaint provides a succinct summary of the course of proceedings and facts in the case. We can do no better than to quote him:

The underlying material facts are not in dispute. Worker suffered a compensable accident on June 15, 2004. Approximately three months later, on September 10, 2004, Worker returned to work earning a comparable wage. Dr. Peter Saltzman placed Worker at maximum medical improvement on April 18, 2005 and assigned a 10% whole person impairment. Worker had been working for almost a year when he filed a petition for a return to work lump sum on August 16, 2005. This Court reviewed the petition and, based upon the pleadings, entered an order of approval at August 31, 2005. Worker saw his treating physician, Dr. Peter Saltzman on August 29, 2005, 13 days after filing the petition for lump sum. Dr. Saltzman found Worker to be suffering from disabling pain which at that point in time prevented Worker from continuing to work and interfered with Worker's activities of daily living. Dr. Saltzman noted that Worker had evidence of degenerative arthritic changes on previous diagnostic studies and that Worker's lumbar spine condition had not improved. At the August 29, 2005 visit Dr. Saltzman recommended a spinal fusion. Worker underwent low back fusion surgery on November 11, 2005. Worker has not returned to work since undergoing back surgery. Worker filed a claim on September 29, 2005 requesting reinstatement of temporary total disability benefits.

{3} The WCJ decided that "[t]he plain language of [Section] 52-5-12(B) is that when a Worker receives his benefit income in a lump sum he is not entitled to any additional benefit income for the compensable injury or disablement ... includ[ing] temporary total disability benefits." The WCJ decided he did not have to resolve any factual issues as to whether Benny's condition had worsened because even if it had, Section 52-5-12(B)'s limitation would trump other provisions in the Workers Compensation Act (WCA) because it "is the more specific statute." Given that the relevant facts are not disputed, we apply a de novo standard of review. Paradiso v. Tipps Equip., 2004-NMCA-009, ¶ 23, 134 N.M. 814, 82 P.3d 985.

{4} We, of course, begin our analysis with the language of the WCA. Section 52-5-12(B) addresses so-called return-to-work lump sum payments and provides in pertinent part:

B. With the approval of the workers' compensation judge, a worker may elect to receive compensation benefits to which he is entitled in a lump sum if he has returned to work for at least six months, earning at least eighty percent of the average weekly wage he earned at the time of injury or disablement. If a worker receives his benefit income in a lump sum, he is not entitled to any additional benefit income for the compensable injury or disablement and he shall only receive that portion of the benefit income that is attributable to the impairment rating as determined in Section 52-1-24 NMSA 1978 [(1990)]. In making lump-sum payments, the payment due the worker shall not be discounted at a rate greater than a sum equal to the present value of all future payments of compensation computed at a five-percent discount compounded annually.

NMSA 1978, § 52-5-9 (1989), addresses modification of compensation orders and provides:

A. Compensation orders are reviewable subject to the conditions stated in this section upon application of any party in interest in accordance with the procedures relating to hearings. The workers' compensation judge, after a hearing, may issue a compensation order to terminate, continue, reinstate, increase, decrease or otherwise properly affect compensation benefits provided by the Workers' Compensation Act ... or the New Mexico Occupational Disease Disablement Law or in any other respect, consistent with those acts, modify any previous decision, award or action.

B. A review may be obtained upon application of a party in interest filed with the director at any time within two years after the date of the last payment or the denial of benefits upon the following grounds:

(1) change in condition[.]

NMSA 1978, § 52-1-56 (1989), describes how and when hearings on petitions for diminution, increase and termination of compensation are considered:

The workers' compensation judge may, upon the application of the employer, worker or other person bound by the compensation order, fix a time and place for hearing upon the issue of claimant's recovery.... If it appears upon such hearing that the disability of the worker has become more aggravated or has increased without the fault of the worker, the workers' compensation judge shall order an increase in the amount of compensation allowable as the facts may warrant.

{5} Our primary task in construing statutory language is to effect legislative intent. Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, ¶ 13, 132 N.M. 608, 52 P.3d 980 (summarizing our general approach to statutory interpretation). We start with the language itself, giving effect to its plain meaning where appropriate while being careful not to "be misled by simplicity of language when the other portions of a statute call its meaning into question, or the language of a section of an act conflicts with an overall legislative purpose." Leo v. Cornucopia Rest., 118 N.M. 354, 357, 881 P.2d 714, 717 (Ct.App.1994) (construing the WCA, citing State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994)). "When considering sections of the Workers' Compensation Act, we consider the language of the particular section in the context of the entire Act." Henington v. Technical-Vocational Inst., 2002-NMCA-025, ¶ 32, 131 N.M. 655, 41 P.3d 923 (citing Draper v. Mountain States Mut. Cas. Co., 116 N.M. 775, 777, 867 P.2d 1157, 1159 (1994)).

{6} The WCJ apparently did not consider the effect, if any, that the provisions of Sections 52-5-9 or 52-1-56 might have on the issue before him; neither does his Order display any consideration of the legislative policies that might inform his decision. In deciding that he did not have to consider any other portion of the WCA because of the supposed clarity of Section 52-5-12(B), the WCJ fell victim to the error of "beguiling simplicity" of the plain meaning rule against which the Supreme Court cautioned in Helman. 117 N.M. at 353, 871 P.2d at 1359.

{7} The Employer emphasizes the portion of Section 52-5-12(B) which states that "[i]f a worker receives his benefit income in a lump sum, he is not entitled to any additional benefit income for the compensable injury or disablement." We do not agree that this language is so clear that no further analysis is required. First, the language the Employer emphasizes is only part of the sentence. The remainder of the same sentence limits the amount that can be paid in a lump sum to the portion "attributable to the impairment rating as determined in [NMSA 1978, § ] 52-1-24." This provision disallows the application of any modifiers when calculating the lump sum. Thus, the employee pays a price for the privilege of getting a lump sum. Cabazos v. Calloway Constr., 118 N.M. 198, 201, 879 P.2d 1217, 1220 (Ct.App.1994) (holding that the Section 52-5-12(B) limitation on lump sum calculation is not to be applied to lump sums allowed under Section 52-5-12(C)). The inclusion of both concepts in the same sentence lends support to a view that the provision is essentially backward-looking only; that is, an employee gives up any further claim for compensation for his condition as it exists as of the time the lump sum is paid. Second, even in isolation, the language Employer relies on can reasonably be read to refer only to the "compensable...