Bryant v. Lear Siegler Management Services Corp.

• Decision Date: 08 April 1993
• Docket Number: No. 13486,13486
• Citation: 115 N.M. 502,1993 NMCA 52,853 P.2d 753
• Parties: James E. BRYANT, Jr., Claimant-Appellee, v. LEAR SIEGLER MANAGEMENT SERVICES CORPORATION and National Union Fire Insurance Company, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 753

853 P.2d 753

115 N.M. 502

James E. BRYANT, Jr., Claimant-Appellee, v. LEAR SIEGLER MANAGEMENT SERVICES CORPORATION and National Union Fire Insurance Company, Respondents-Appellants.

No. 13486.

Court of Appeals of New Mexico.

April 8, 1993.

Certiorari Denied May 25, 1993.

[115 N.M. 503] J. Robert Beauvais, Ruidoso, for claimant-appellee.

Kelly A. Genova, Sarah Curry Smith, C. Christine Osnes, Sager, Curran, Sturges & Tepper, P.C., Albuquerque, for respondents-appellants.

Robert M. Aurbach, Albuquerque, for amicus curiae Workers' Compensation Admin.

OPINION

APODACA, Judge.

Lear Siegler Management Services Corporation and National Union Fire Insurance Company (collectively referred to as Employer) appeal the order of the Workers' Compensation Judge (Judge) granting James E. Bryant (Worker) benefits for total disability, vocational rehabilitation, medical expenses, and attorney fees under the New Mexico Occupational Disease Disablement Law, NMSA 1978, Sections 52-3-1 to -60 (Repl.Pamp.1991) (ODDL). Employer raises five issues on appeal: whether (1) the Judge erred in awarding total disability benefits; (2) the Judge erred in awarding benefits for a psychological condition; (3) Worker failed to establish to a medical probability that his symptoms were caused by his employment; (4) the Judge erred in awarding vocational benefits; and (5) the Judge erred in awarding prejudgment interest.

Because the issue of the Judge's authority to award prejudgment interest on awards made pursuant to the ODDL is an issue of first impression in New Mexico, we requested that the parties provide supplemental briefing on the issue and also invited the Workers' Compensation Administration to participate as amicus curiae. The additional briefing was extremely helpful.

We affirm the awards of total disability benefits and vocational rehabilitation benefits. However, we reverse the Judge's award of prejudgment interest and remand for further proceedings consistent with this opinion.

BACKGROUND

We briefly summarize the Judge's findings: Worker was employed from December 1986 until February 1990 by Employer as a sheet-metal fabricator. Worker did highly technical assembly work on military aircraft and had to use industrial solvents. As a result of his work-related exposure to the solvents, Worker developed toxic solvent syndrome, which caused permanent damage to his liver and to his gastrointestinal and neurological systems. Worker's treating physician, Dr. Armando Garcia-Cantu, diagnosed Worker as totally disabled and unable to return to his work as a sheet-metal fabricator because of his exposure and sensitivity to industrial solvents. Employer's consulting physician, Dr. Lee Ettinger, diagnosed Worker as having been exposed to toxic industrial solvents resulting in elevated liver functions, although tests indicated that Worker's liver functions had returned to normal by October 1990. Worker had suffered severe emotional problems as a result of his occupational disease.

Worker was 37 years old at the time of the hearing and, although he had a bachelor's degree in psychology, his only job experience, other than as a sheet-metal and fiberglass fabricator, was as a cashier and in warehouse maintenance. Worker was unable to resume his duties as a sheet-metal fabricator. Two vocational rehabilitation evaluations determined that Worker would not be successful in any of the vocational pursuits for which he had training and experience. Worker would require medical care for his neurological symptoms, and these costs were reasonably and necessarily related to his compensable disability. The rate of compensation was $291.75 per week.

Based on these findings, the Judge concluded that Worker had a compensable occupational disease and was totally disabled. The Judge thus ordered Employer to pay total disability benefits from February 7, 1990; medical costs for treating Worker's physiological and psychological symptoms; vocational rehabilitation; attorney fees; and prejudgment interest. We will discuss additional facts below as necessary.

DISCUSSION

1. Standard Of Review.

In reviewing the Judge's decision, this Court applies the "whole record" standard of review. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). Under this standard, the reviewing court considers the evidence in the light most favorable to the Judge's decision, but must also consider the contravening evidence, National Council on Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278, 281, 756 P.2d 558, 561 (1988), to determine whether, in light of all the evidence, substantial evidence supports the Judge's decision. Kennecott Copper Corp. v. Chavez, 113 N.M. 504, 510, 828 P.2d 416, 422 (Ct.App.), cert. denied, 113 N.M. 488, 827 P.2d 1302 (1992). For a conclusion to be supported by substantial evidence, the whole record must contain "sufficient credible evidence which a reasonable mind might accept as adequate to support the conclusion reached." Estate of Mitchum v. Triple S Trucking, 113 N.M. 85, 91, 823 P.2d 327, 333 (Ct.App.), cert. denied, 113 N.M. 16, 820 P.2d 1330 (1991). The reviewing court does not reweigh the evidence, substitute its judgment for that of the Judge, or seek to determine whether the evidence supports a contrary finding. Id. at 90-91, 823 P.2d at 332-33 2. Award Of Total Disability Benefits.

Employer claims that the Judge's award of total disability benefits for the period after July 18, 1990, was error because Worker was no longer physically disabled after that date. Additionally, he had worked as a bookkeeper, a job from which he was fired for reasons unrelated to his physical condition. Relying on the test for total disability formulated under the former relevant statutes of the Workers' Compensation Act, NMSA 1978, Sections 52-1-25 and -26 (Repl.Pamp.1991) (effective until January 1, 1991), Employer contends that Worker's brief employment as a bookkeeper demonstrated that he was capable of working. As a result, Employer argues that Worker did not meet the requirements for total disability and the Judge should have found instead that he was partially disabled.

The ODDL defines "disablement" as:

(1) the total physical incapacity, by reason of an occupational disease, of an employee to perform any work for remuneration or profit in the pursuit in which the employee was engaged, provided that silicosis, when complicated by active tuberculosis of the lungs, shall be presumed to result in disablement; or

(2) the partial physical incapacity of an employee, by reason of an occupational disease, to perform to some percentage extent any work for which he is fitted by age, education and training.

Section 52-3-4(D) (emphasis added). To a certain extent, this language tracks most but not all of the language defining total disability and partial disability under the 1987 version of the Workers' Compensation Act. Sections 52-1-25(A), -26(B) (effective until January 1, 1991). However, we do not agree with Employer that the test for total disability that was applied under the 1987 Act is applicable to the facts of this appeal.

Former Sections 52-1-25(A) and -26(B) referred to the worker's inability to perform "any occupation" for which he or she was fitted. Thus, under the 1987 Act, to be totally disabled, a worker had to prove that he or she was completely unable to perform the tasks comprising the work performed at the time of injury and also was unable to perform any work for which he or she was fitted, based upon his or her age, education, and experience. Sanchez v. Molycorp, Inc., 113 N.M. 375, 378, 826 P.2d 971, 974 (Ct.App.1992). In contrast, however, the ODDL expressly provides that, when considering whether an occupational disease has totally disabled a worker, the inquiry is limited to whether the worker is totally unable to perform any work in the occupation in which the worker was engaged. Section 52-3-4(D)(1); see Holman v. Oriental Refinery, 75 N.M. 52, 58-59, 400 P.2d 471, 476 (1965) (interpreting earlier version of statute, noted that language of ODDL is more definite and specific than parallel provision of workers' compensation law and does not require same interpretation). When interpreting a statute, words are given their ordinary meaning unless a different intent is clearly indicated. Fahr v. Aaron McGruder Trucking, 107 N.M. 241, 242, 755 P.2d 85, 86 (Ct.App.1988). Thus, in determining whether a worker is totally incapacitated under the ODDL, we do not consider other occupations for which the worker might be fitted.

We note that there is an apparent inconsistency within Section 52-3-4(D). Subsection 1 requires a determination of total physical incapacity to be based on whether the worker can "perform any work for remuneration or profit in the pursuit in which the employee was engaged," while Subsection 2 requires that, for a worker to be partially physically incapacitated, he must be unable "to perform to some percentage extent any work for which he is fitted by age, education and training." (Emphasis added.) Therefore the inquiry under Section 52-3-4(D)(2) is not limited to the worker's capacity to perform the duties of his occupation when injured as it is under Section 52-3-4(D)(1). However, contrary to Employer's apparent assumption, our task as a reviewing court is not to determine whether substantial evidence would support a finding that Worker was partially incapacitated, but rather to determine whether, in light of the whole record, substantial evidence supports the Judge's finding that Worker was totally disabled. See Antillon v. New Mexico State Highway Dep't, 113 N.M. 2, 8, 820 P.2d 436, 442 (Ct.App.1991); Bowles v. Los Lunas Sch., 109 N.M. 100, 104, 781 P.2d 1178, 1182 (Ct.App.), cert. denied, 109 N.M. 131, 782 P.2d 384 (1989). Thus, although we recognize the possibility that a worker who is partially disabled...