Fowler v. Care

• Decision Date: 01 March 2013
• Docket Number: No. 31,438.,31,438.
• Citation: 298 P.3d 491
• Parties: Sherrie FOWLER, Worker–Appellee, v. VISTA CARE and American Home Insurance Company, Employer/Insurer–Appellants.
• Court: Court of Appeals of New Mexico

298 P.3d 491

Sherrie FOWLER, Worker–Appellee,

v.VISTA CARE and American Home Insurance Company, Employer/Insurer–Appellants.

No. 31,438.

Court of Appeals of New Mexico.

Dec. 13, 2012.

Certiorari Granted, March 1, 2013, No. 33,993.

Dunn Law Offices, Rod Dunn, Albuquerque, NM, for Appellee.

Butt Thornton & Baehr PC, Emily A. Franke, David N. Whitham, Albuquerque, NM, for Appellants.

OPINION

WECHSLER, Judge.

{1} Vista Care and American Home Insurance Co. (Vista Care) appeal from a compensation order entered in the Workers' Compensation Administration (WCA) awarding Sherrie Fowler (Worker) temporary total disability benefits. We consider various provisions of the Workers' Compensation Act, NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2007), in determining whether (1) temporary total disability benefits are subject to a durational limit, (2) a previous determination that a worker is at maximum medical improvement precludes a finding that the worker was no longer at maximum medical improvement at a later date, and (3) Vista Care is entitled to a credit against the temporary total disability benefits for previously paid lump sum payments for future permanent partial disability benefits. We hold that (1) temporary total disability benefits are subject to the 700–week durational limit found in Section 52–1–47(A); (2) the Workers' Compensation Judge (WCJ) did not err in concluding that Worker was not at maximum medical improvement on March 14, 2007, despite a previous finding of maximum medical improvement; and (3) on remand, the WCJ should consider how the 700–week limitation period affects the application of any potential credit for lump sum advances of permanent partial disability benefits. Accordingly, we reverse in part and affirm in part, and we remand to the WCA for further proceedings consistent with this opinion.

BACKGROUND

{2} On April 7, 2003, Worker suffered a back injury arising out of, and occurring in the course of, her employment with Vista Care. As a result of her injury, Worker underwent a spinal fusion in October 2003. Thereafter, Worker continued to receive medical care, including multiple spinal surgeries. On January 11, 2006, Dr. James Thomas found that Worker had reached maximum medical improvement. As a result, Worker filed a petition for a lump sum payment of permanent partial disability benefits for payment of debt, pursuant to NMSA 1978, Section 52–5–12(C) (2009). The WCJ granted the petition on April 27, 2006, finding that Worker had reached maximum medical improvement prior to April 27, 2006.

{3} Worker continued to receive treatment on her injured back and, on February 7, 2007, Dr. Andrew Cash examined Worker. Dr. Cash's evaluation revealed that Worker suffered from an adjacent level breakdown and stenosis and recommended that Worker undergo an extension of the previous fusion with decompression. Worker saw Dr. Cash again on March 14, 2007, and Dr. Cash recommended an anterior-posterior lumbar fusion of L3–4. After the parties disagreed whether the treatment suggested by Dr. Cash related to the original injury, Dr. Jose Reyna provided an independent medical evaluation on October 22, 2009, and concluded that the new injury related to the original injury and that Worker would benefit from the additional treatment suggested by Dr. Cash. Worker underwent the surgery on July 13, 2010. The parties have stipulated that Worker has yet to reach maximum medical improvement following the July 13, 2010 surgery.

{4} In the compensation order entered on June 30, 2011 that is the subject of this appeal, the WCJ concluded that Worker was no longer at maximum medical improvement as of March 14, 2007. The WCJ awarded temporary total disability to Worker beginning March 14, 2007, the date at which the WCJ determined that Worker was no longer at maximum medical improvement, through the date Worker reaches maximum medical improvement from the July 13, 2010 surgery. The WCJ further concluded that the temporary total disability benefits were not subject to the 500– or 700–week durational limit found in Section 52–1–42(A), and, therefore, Worker could be paid benefits for an indefinite period of time. Finally, the WCJ concluded that Vista Care was not entitled to a credit for the lump sum advances of permanent partial disability benefits to apply to the temporary total disability benefits it awarded.

{5} On appeal, Vista Care argues that the WCJ (1) erred in holding that temporary total disability benefits are not subject to the 500– or 700–week limit in Section 52–1–42(A) or the 700–week limit found in Section 52–1–47(A) and can potentially be payable for Worker's lifetime; (2) erred in concluding that Worker was no longer at maximum medical improvement as of March 14, 2007, despite finding that Worker was at maximum medical improvement on January 11, 2006; and (3) abused his discretion in holding that Vista Care is not entitled to a credit for the lump sum advances of future payments for permanent partial disability benefits when applied to the additional temporary total disability benefits.

STANDARD OF REVIEW

{6} “All workers' compensation cases are reviewed under a whole record standard of review.” Moya v. City of Albuquerque, 2008–NMSC–004, ¶ 6, 143 N.M. 258, 175 P.3d 926. When our review consists of reviewing a “WCJ's interpretation of statutory requirements, we apply a de novo standard of review.” DeWitt v. Rent–A–Center, Inc., 2009–NMSC–032, ¶ 14, 146 N.M. 453, 212 P.3d 341. “We look first to the plain meaning of the statute's words, and we construe the provisions of the [Workers' Compensation] Act together to produce a harmonious whole. After we determine the meaning of the statutes, we review the whole record to determine whether the WCJ's findings and award are supported by substantial evidence.” Id. (internal quotation marks and citation omitted). “When an agency that is governed by a particular statute construes or applies that statute, the court will begin by according some deference to the agency's interpretation.” Morningstar Water Users Ass'n v. N.M. Pub. Util. Comm'n, 120 N.M. 579, 583, 904 P.2d 28, 32 (1995). However, we are not bound by the agency's interpretation and may substitute our “own independent judgment for that of the agency because it is the function of the courts to interpret the law.” Id.

TEMPORARY TOTAL DISABILITY BENEFIT DURATION LIMITS

{7} As pertinent to this appeal, the Workers' Compensation Act provides for compensation benefits for permanent partial disability in Section 52–1–42 and for total disability in Section 52–1–41. Both sections contain limits on the duration of the benefits.

{8} In relevant part, Section 52–1–42(A) states that:

For permanent partial disability ... [t]he duration of partial disability benefits shall depend upon the extent and nature of the partial disability, subject to the following:

(1) where the worker's percentage of disability is equal to or greater than eighty, the maximum period is seven hundred weeks;

(2) where the worker's percentage of disability is less than eighty, the maximum period is five hundred weeks[.]

Section 52–1–41(A) provides that, with exceptions that are not relevant to this appeal, for total disability, a “worker shall receive compensation benefits for the remainder of his life.”

{9} In addition to these limitation provisions stated together with specific types of benefits, the Workers' Compensation Act contains a general provision concerning the limitation of compensation benefits. Section 52–1–47 provides in relevant part

except for provision of lifetime benefits for total disability awarded pursuant to Section 52–1–41 ...:

A. compensation benefits for any combination of disabilities or any combination of disabilities and death shall not be payable for a period in excess of seven hundred weeks[.]

{10} The WCJ relied on Section 52–1–41(A) for the proposition that the temporary total disability benefits are potentially subject to payment over Worker's lifetime. The WCJ determined that Section 52–1–41(A) clearly and unambiguously applies to both permanent and temporary “total disability.” In the WCJ's view, the “generic” term “total disability” encompasses both “the temporary and permanent components of the category.”

{11} In its entirety, Section 52–1–41(A) provides:

For total disability, the worker shall receive, during the period of that disability, sixty-six and two-thirds percent of his average weekly wage, and not to exceed a maximum compensation of eighty-five percent of the average weekly wage in the state, a week, effective July 1, 1987 through December 31, 1999, and thereafter not to exceed a maximum compensation of one hundred percent of the average weekly wage in the state, a week; and to be not less than a minimum compensation of thirty-six dollars ($36.00) a week. Except as provided in Subsections B and C of this section, the worker shall receive compensation benefits for the remainder of his life.

{12} The first sentence of Section 52–1–41(A) establishes the formula to set the amount of compensation benefits that a worker may receive for total disability “ during the period of that disability.” (Emphasis added.) The formula is used to calculate temporary total disability as well as permanent total disability benefits. Cf. Breen v. Carlsbad Mun. Sch., 2005–NMSC–028, ¶ 1, 138 N.M. 331, 120 P.3d 413 (reviewing a case in which the worker received benefits under Section 52–1–41(A) for an injury resulting in a temporary total disability). By the express language of the statute, it applies only for benefits during the period of the disability. Section 52–1–41(A). The second sentence, on the other hand, states that, with exceptions for mental impairment and death, the worker is entitled to receive compensation benefits “for the remainder of his life.” Section 52–1–41(A). Because this sentence is contained in Section 52–1–41(A) that begins “[f]or total disability,” we presume that it relates to...