Chevron Resources By and Through Blatnik v. New Mexico Superintendent of Ins., 13499

• Court: Court of Appeals of New Mexico
• Citation: 1992 NMCA 81,838 P.2d 988,114 N.M. 371
• Docket Number: No. 13499,13499
• Parties: CHEVRON RESOURCES By and Through Frank BLATNIK, its Assignee, Claimant-Appellant, v. NEW MEXICO SUPERINTENDENT OF INSURANCE and New Mexico Subsequent Injury Fund, Respondents-Appellees.
• Decision Date: 09 July 1992

Page 988

838 P.2d 988 114 N.M. 371 CHEVRON RESOURCES By and Through Frank BLATNIK, its
Assignee, Claimant-Appellant,
v.
NEW MEXICO SUPERINTENDENT OF INSURANCE and New Mexico
Subsequent Injury Fund, Respondents-Appellees. No. 13499. Court of Appeals of New Mexico. July 9, 1992.
Certiorari Denied Aug. 26, 1992.

Page 989

[114 N.M. 372] David H. Pearlman, David H. Pearlman, P.A., Albuquerque, for claimant-appellant.

Nathan H. Mann, Todd E. Farkas, Gallagher, Casados & Mann, P.C., Albuquerque, for respondents-appellees.

OPINION

HARTZ, Judge.

Frank Blatnik (Worker) appeals from the denial of his claim for benefits under the Subsequent Injury Act, Secs. 52-2-1 to -14 (Repl.Pamp.1991). Worker was employed by Chevron Resources (Chevron) as an underground miner on May 1, 1986. On May 17, 1989, he filed a claim for workers' compensation benefits against Chevron based on an alleged disability beginning on July 15, 1988. He amended his claim in December 1989 to include an alternative claim for benefits under the New Mexico Occupational Disease Disablement Law (ODDL) Secs. 52-3-1 to -60 (Repl.Pamp.1991). On February 15, 1990, Worker and Chevron settled their dispute. Chevron was to pay Worker a lump sum and assigned to Worker any right it had against the New Mexico Subsequent Injury Fund (Fund). On February 23, 1990, Worker petitioned for an order that the Fund pay him benefits. The settlement was approved by the Workers' Compensation Judge (WCJ) on March 7, 1990.

In response to Worker's claim against the Fund, the Fund denied Worker's allegations that he suffered an injury compensable under the Workers' Compensation Act and stated as an affirmative defense, "Any entitlement or benefits which [Worker] had was pursuant to the [ODDL], and as such [Worker] is not entitled to any recovery against [the Fund]." After an evidentiary hearing, the WCJ ruled that Worker did not suffer a compensable injury under the Workers' Compensation Act and that the Subsequent Injury Act does not apply to benefits payable pursuant to the ODDL. We affirm.

I. THE SUBSEQUENT INJURY ACT

We begin with a brief description of the Subsequent Injury Act. Roughly speaking,

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[114 N.M. 373] under the Workers' Compensation Act an employer (who in general must carry workers' compensation insurance, see Sec. 52-1-4) is responsible for paying all benefits due as the result of a work-related injury to an employee. In computing the benefits owed to a worker, the Act does not deem relevant whether the worker suffered from a pre-existing impairment, even though an accidental injury to a previously impaired worker could cause significantly greater disability and require greater benefit payments than the same injury to an unimpaired worker (e.g., the loss of an eye is much more devastating if one had already lost vision in the other eye). See Reynolds v. Ruidoso Racing Ass'n, 69 N.M. 248, 365 P.2d 671 (1961) (worker with pre-existing osteoporosis). But cf. NMSA 1978, Sec. 52-1-47(D) (Repl.Pamp.1991) (reduction of benefits to prevent duplication of benefits). Consequently, there could be an economic disincentive to hiring impaired workers; employers could expect to pay more for compensation benefits when they hire previously impaired workers.

To encourage employers to hire impaired workers, the Subsequent Injury Act provides for an insurance fund (funded by employers, see Sec. 52-2-4) to reimburse employers when, because of an employee's pre-existing permanent physical impairment, a subsequent work-caused disability is "materially and substantially greater than that which would have resulted from the subsequent injury alone." Sec. 52-2-9(A); see Vaughn v. United Nuclear Corp., 98 N.M. 481, 488-89, 650 P.2d 3, 10-11 (Ct.App.1982). This intent is stated expressly in the Subsequent Injury Act:

Declaration of policy and legislative intent.

As a guide to the interpretation and application of the Subsequent Injury Act, the policy and intent of this legislature is declared to be as follows:

A. that every person in this state who must work for a living should have a reasonable opportunity to maintain his independence and self-respect through self-support if he has been physically handicapped;

B. that a plan which will reasonably, equitably and practically operate to remove obstacles to the employment of physically handicapped persons honorably discharged from the armed forces of the United States or any other physically handicapped person is of vital importance to the state, its people and this legislature;

C. that it is the considered judgment of this legislature that the provisions embodied in the Subsequent Injury Act, which make a logical and equitable adjustment of employer's liability under the Workers' Compensation Act, constitute a reasonable approach to the solution of the problem of employing physically handicapped persons; and

D. that the Subsequent Injury Act shall not be construed to create, provide, augment, diminish or affect in any way the workers' compensation benefits due to an injured employee. The payment of compensation to an injured employee under the Workers' Compensation Act shall be determined without regard to the Subsequent Injury Act, and the provisions of the Subsequent Injury Act shall be considered only in determining whether an employer or his insurance carrier is entitled to reimbursement from the subsequent injury fund created in Section 52-2-4 NMSA 1978.

Sec. 52-2-2.

The one unusual aspect of this case is that the employee, not the employer, is the one seeking reimbursement from the Fund. Worker, however, stands in the shoes of Chevron, because his claim is based on an assignment to him of Chevron's rights against the Fund.

II. COMPENSABILITY UNDER THE WORKERS' COMPENSATION ACT

Worker's first contention is that Chevron was entitled to recover from the Fund because Worker was a previously impaired worker who while employed by Chevron suffered an injury compensable under the Workers' Compensation Act. We consider only whether the WCJ erred in ruling that Worker did not establish that while working

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[114 N.M. 374] for Chevron he had suffered an injury compensable under the Workers' Compensation Act.

Worker contends that he was entitled to benefits under the Workers' Compensation Act because his exposure to dust, diesel fumes, carbon monoxide, and other irritants while working for Chevron aggravated a pre-existing lung impairment. In his brief-in-chief Worker points to the evidence supporting his contentions and specifically attacks the WCJ's finding that his silicosis was foreseeable and that his condition "would have further progressed and deteriorated ... even if he were removed from underground mining and did not work." He states, "While the medical evidence in the present case supports the proposition that [Worker's] disability was partially the result of the natural progression of silicosis, none of the medical experts stated that [Worker's] 1988 condition was solely the result of the natural progression of the condition."

We reject Worker's argument. Worker had the burden of persuading the WCJ that he had suffered an aggravation of his condition in the course of his employment with Chevron. See Baca v. Bueno Foods, 108 N.M. 98, 102, 766 P.2d 1332, 1336 (Ct.App.1988) (worker has burden of proving that he or she comes within terms of the statute). We must affirm the WCJ if there was a rational basis for the WCJ to reject Worker's proposed finding that his lung condition was aggravated during the course of his employment with Chevron. See Sosa v. Empire Roofing Co., 110 N.M. 614, 798 P.2d 215 (Ct.App.1990).

The record establishes that there was such a rational basis. Worker does not dispute the WCJ's findings that he had been employed as an underground miner for approximately 30 years, that chest x-rays in 1966 or 1967 disclosed early evidence of silicosis, and that he was diagnosed as having Stage I silicosis in 1975. Dr. William Christensen testified that the cause of Worker's disability was silicosis. Worker does not dispute the WCJ's finding that silicosis is a "lung disease resulting from inhalation of silica dust." Dr. Christensen, as well as Dr. Arnolfo Valdivia and Dr. Ann DeHart, all testified that Worker's condition would have progressed after 1986 even if he no longer worked. Dr. Christensen also testified that exposure to anything other than silica dust would have no long-term effect on...