Gonzales v. Lovington Public Schools

• Decision Date: 21 November 1989
• Docket Number: No. 11241,11241
• Citation: 1989 NMCA 102,785 P.2d 276,109 N.M. 365
• Parties: , 58 Ed. Law Rep. 325 Ismael G. GONZALES, Claimant-Appellant, v. LOVINGTON PUBLIC SCHOOLS and The New Mexico Public School Insurance Authority, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 276

785 P.2d 276

109 N.M. 365, 58 Ed. Law Rep. 325

Ismael G. GONZALES, Claimant-Appellant, v. LOVINGTON PUBLIC SCHOOLS and The New Mexico Public School Insurance Authority, Respondents-Appellees.

No. 11241.

Court of Appeals of New Mexico.

Nov. 21, 1989.

Certiorari Denied Jan. 4, 1990.

[109 N.M. 367] Lowell Stout, Stout & Stout, Hobbs, for claimant-appellant.

Kevin M. Brown, Christopher W. Nickels, Beall, Pelton, O'Brien & Brown, Albuquerque, for respondents-appellees.

OPINION

BIVINS, Chief Judge.

Worker appeals the part of the compensation order of the Workers' Compensation Division that reduces his benefits from temporary total disability to 10% permanent partial disability after December 20, 1989. Worker's sole contention on appeal is that the hearing officer did not have authority to determine partial disability before worker completed vocational rehabilitation, even though worker had failed to make a reasonable effort to rehabilitate himself. In resolving the issue, we examine the transient provisions of the Workmen's Compensation Act, NMSA 1978, Secs. 52-1-1 through -69 (Orig.Pamp. & Cum.Supp.1986) (Interim Act), effective from May 21, 1986 through June 19, 1987. We affirm.

Background

The unchallenged findings of fact made by the hearing officer reflect that worker, age thirty-five with a ninth-grade education, suffered an injury to his back on December 11, 1986, while working as a custodian for the Lovington Public Schools. At the time of the accidental injury, worker was earning $311.07 per week. From the date of the injury until October 24, 1988, worker was unable to perform his duties, which included cleaning and maintenance of the school buildings and grounds. During that period he was temporarily totally disabled. Worker reached maximum medical improvement on October 25, 1988, and was found to have a permanent partial disability of 10%.

The hearing officer also found that worker's background included employment as a farm laborer, tractor driver, and gasoline service station attendant. He found worker unable to return to his former job as a custodian and in need of vocational rehabilitation to restore him to suitable employment. The hearing officer found that worker could complete rehabilitation in one year. He also found worker was not making a reasonable effort toward rehabilitation. (The briefs seem to indicate worker never attempted the program recommended.) He found that, after vocational rehabilitation and taking into account the 10% partial disability, worker "will be earning a comparable wage."

The compensation order provides that temporary total disability benefits continue from December 22, 1988, through December 20, 1989, after which benefits shall automatically decrease to the 10% permanent partial. Neither party challenges the award of temporary total disability benefits through December 20, 1989. It is from the reduction of compensation benefits after December 20, 1989, that worker appeals.

Discussion

Worker contends that, once he reached maximum medical improvement, the hearing officer had no authority to postpone determination of permanent total disability. He also argues that his failure to attempt rehabilitation had no bearing, since Section 52-1-50 precludes forfeiture or diminution of any award on account of refusal to undertake rehabilitation. Worker states that it was incumbent on the hearing officer to award him permanent total disability, since he cannot return to his employment as a custodian and cannot earn comparable wages or salary. Employer would not be without a remedy, according to worker, since it has the right to seek termination or diminution of the award every six months. See Sec. 52-1-56.

Employer counters, arguing that the hearing officer could consider the wages or salary worker would be able to earn after vocational rehabilitation, and properly exercised his discretion in setting a time limit for worker to complete rehabilitation. We agree.

This case brings into play the interaction between Sections 52-1-24, -25, and -26, and other provisions of the Interim Act relating thereto. As we said in Barela v. Midcon of N.M., Inc., 109 N.M. 360, 785 P.2d 271 (Ct.App.1989), the legislature, in enacting the Interim Act, was not concerned with detailed interrelationships between its provisions, the apparent purpose being to establish certain benchmarks and to leave to the courts the task of " 'rationalizing' the provisions of the statute." Id., at 364, 785 P.2d at 275. We attempt to do that now in addressing the question before us.

Section 52-1-26 provides that temporary total disability benefits will be paid during the period a worker is unable, by reason of accidental injury arising out of and in the course of his employment, to perform his duties prior to the date of maximum medical improvement. Section 52-1-27 defines maximum medical improvement as "the date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability." See Baca v. Bueno Foods, 108 N.M. 98, 766 P.2d 1332 (Ct.App.1988). Once maximum medical improvement has been achieved, a determination would ordinarily be made as to permanent disability, either total or partial, if worker has a permanent physical impairment.

Determinations of permanent disability are made by first deciding the extent of partial disability. If the injury is to a scheduled member, Section 52-1-43(B) applies. If the injury is to a body member or function not listed in subsection B, then subsection C of Section 52-1-43 refers the fact finder to the partial disability section of the Interim Act, Section 52-1-25. That would be the case here, since we are concerned with an injury to the back.

Permanent partial disability under Section 52-1-25 means a permanent physical impairment whereby a worker has an anatomic or functional abnormality existing after the date of maximum medical improvement, as determined by the American Medical Association's guidelines or comparable publications. Here the hearing officer made appropriate findings under that section and determined worker has a 10% partial disability.

The next step is to determine if the worker is permanently totally disabled. Section 52-1-24 provides a worker is permanently totally disabled if he suffers a permanent physical impairment whereby he is "wholly unable to earn comparable wages or salary." Comparable wages or salary are determined by a formula. The hearing officer considers the benefits the worker is entitled to receive for his partial disability under Section 52-1-43 (either scheduled member or partial disability). Here that entitlement was calculated at 10%. The hearing officer then adds that benefit to what the worker is able to earn "after the date of maximum medical improvement and vocational rehabilitation." Sec. 52-1-24 (emphasis added). If the sum of those two amounts is comparable to the wage the worker was earning when injured, the worker is deemed to be able to earn comparable wages or salary, and is therefore not entitled to permanent total disability. If not comparable, worker is entitled to permanent total disability.

Up to this point, the several provisions of the Interim Act dovetail and achieve the legislative intent of providing for temporary total disability until maximum medical improvement is achieved and then providing for payment of scheduled member, permanent partial, or permanent total disability if the worker retains a permanent physical impairment. The problem arises with an ambiguous phrase contained in Section 52-1-24. We set forth that section and highlight the language in question.

A. As used in the Workmen's Compensation Act [Chapter 52, Article 1 NMSA 1978], "permanent total disability" means a permanent physical impairment to a workman resulting by reason of an accidental injury arising out of and in the course of employment whereby a workman is wholly unable to earn comparable wages or salary. In determining whether a workman is able to earn comparable wages and salary, the hearing officer shall consider the benefits the worker is entitled to receive under Section 52-1-43 NMSA 1978. If the bene fits to which the workman is entitled under Section 52-1-43 NMSA 1978 and the wage he is able to earn after the date of maximum medical improvement and vocational rehabilitation as provided in this act is comparable to the wage the worker was earning when he was injured, he shall be deemed to be able to earn comparable wages or salary. "Physical impairment" does not include impairment of function due solely to psychological or emotional conditions, including mental stress.

Section 52-1-24(A) (emphasis added).

The first question is whether the highlighted language means that determination of permanent total disability should be delayed until the worker not only achieves maximum medical improvement but also completes vocational rehabilitation. The difficulties encountered in reading this provision in that manner can be illustrated by...