Cabazos v. Calloway Const.

• Decision Date: 30 June 1994
• Docket Number: No. 15443,15443
• Citation: 118 N.M. 198,879 P.2d 1217,1994 NMCA 91
• Parties: Bacilio CABAZOS, Claimant-Appellee, v. CALLOWAY CONSTRUCTION, Employer, and The Travelers Insurance Companies, Insurer, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 1217

879 P.2d 1217

118 N.M. 198

Bacilio CABAZOS, Claimant-Appellee, v. CALLOWAY CONSTRUCTION, Employer, and The Travelers Insurance

Companies, Insurer, Respondents-Appellants.

No. 15443.

Court of Appeals of New Mexico.

June 30, 1994.

Certiorari Denied Aug. 10, 1994.

[118 N.M. 199] Nancy Kantrowitz, Law Offices of Simon & Oppenheimer, Santa Fe, for claimant-appellee.

Kenneth B. Baca, Baca, Coryell, Gershon & Hall, P.A., Santa Fe, for respondents-appellants.

OPINION

DONNELLY, Judge.

In this case we are required to determine the proper interpretation of the statutory provision authorizing the payment of partial lump-sum workers' compensation awards for the payment of debts that have accumulated during a worker's disability. See NMSA 1978, Sec. 52-5-12(C) (Repl.Pamp.1991) (Effective January 1, 1991).

Employer and Insurer (Respondents) appeal from the order of the Workers' Compensation Judge (Judge) approving a partial lump-sum payment and determining the number of weeks that Respondents are required to make additional payments of benefits. Our first and second calendar notices proposed summary affirmance in favor of Bacilio Cabazos (Claimant). Respondents have filed a timely memorandum in opposition to the second calendar notice. We are not persuaded by Respondent's arguments, and we affirm the order approving the partial lump-sum payment and the computation of the number of remaining weekly payments.

The dispositive facts are not contested. Claimant, a bricklayer, was injured on February 14, 1991, in the course and scope of his employment. He reached maximum medical improvement on July 29, 1992, at which time he was determined to have an impairment rating of twelve percent (12%) of the whole person. Claimant was fifty-eight years old, had a residual physical capacity of light duty, and was unable to return to his occupation as a bricklayer, a heavy-duty position that he had held for thirty-four years. Based on these factors, Claimant was determined to have a disability rating of thirty-six percent.

On October 15, 1993, pursuant to Section 52-5-12(C), Claimant filed a petition for a partial lump-sum payment in the amount of $8,179.87 to pay debts that had accumulated during his disability. Attached to his petition were documents indicating the nature and extent of the debts and the dates they were incurred. The largest debt was $7200 for rent arrearages; additional amounts were owed to utility companies that were threatening to discontinue service if payment of past due bills was not forthcoming. The order approving the partial lump-sum payment was filed on October 18, 1993.

Subsequently, a dispute developed between Claimant and Respondents concerning the method of payment of the partial lump-sum amount, and the amount and duration of the periodic payments that remained after the payment of the partial lump-sum. Respondents contended that Section 52-5-12 required that workers' compensation benefits should be reduced from benefits based on the disability rating to benefits based on the impairment rating. The Judge rejected this argument, and Respondents have appealed.

The pertinent portions of Section 52-5-12 read as follows:

A. It is stated policy for the administration of the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978] ... that it is in the best interest of the injured worker or disabled employee that he receive benefit payments on a periodic basis. Except as provided in Subsections B, C and D of this section, lump-sum payments in exchange for the release of the employer from liability for future payments of compensation or medical benefits shall not be allowed.

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....

C. After maximum medical improvement and with the approval of the workers' compensation judge, a worker may elect to receive a partial lump-sum payment of workers' compensation benefits for the sole purpose of paying debts that may have accumulated during the course of the injured or disabled worker's disability.

D. If an insurer pays a lump-sum payment to an injured or disabled worker without the approval of a workers' compensation judge and if, at a later date, benefits are due for the injured or disabled worker's claim, the insurer alone shall be liable for that claim and shall not in any manner, including rate determinations and the employer's experience modifier, pass on the cost of the benefits due to the employer. [Emphasis added.]

Respondents contend that the underlined sentence in Subsection B should also be applied to partial lump-sum payments made under Subsection C.

Respondents do not argue that Section 52-5-12 is ambiguous; instead, they argue that this Court should construe Subsection B together with Subsection C, because this is more consistent with the legislative policy of discouraging lump-sum payments of benefits. We note, however, that if a statute is not ambiguous, there is no reason to resort to principles of construction or considerations of policy. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994); V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993); State ex rel. Stratton v. Serna, 109 N.M. 1, 3, 780 P.2d 1148, 1150 (1989). "A statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses." State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct.App.1992). The determination of whether the language of a statute is ambiguous is a question of law for the Court to decide. See New Mexico State Bd. of Educ. v. Board of Educ. of Alamogordo Pub. Sch. Dist. No. 1, 95 N.M. 588, 590, 624 P.2d 530, 532 (1981).

We turn now to an examination of the pertinent language of Section 52-5-12. Subsection A of the statute declares that lump-sum payments of benefits are against legislative policy except to the extent that they are specifically authorized in Subsections B, C, and D. Reading the statute in its entirety, we believe that the fact that three different subsections concern lump-sum payments indicates that three distinctly different situations are involved.

Subsection B authorizes the worker to elect and the Judge to approve payment of all compensation benefits due the worker in a lump-sum (full lump-sum payment) when the worker has returned to work, has worked at least six months, and is earning at least eighty percent of the pre-injury wage. Thus, full lump-sum payments are restricted to workers who have substantially, though perhaps not fully, recovered, physically and economically, from the effects of the injury or disability. The sentence R...