Henington v. Technical Vocational Institute

• Decision Date: 10 January 2002
• Docket Number: No. 21,758.,21,758.
• Citation: Henington v. Technical Vocational Institute, 41 P.3d 923, 131 N.M. 642, 2002 NMCA 25 (N.M. App. 2002)
• Parties: Mack HENINGTON, Worker-Appellee, v. TECHNICAL-VOCATIONAL INSTITUTE and New Mexico Public School Insurance Authority, Employer/Insurer-Appellants.
• Court: Court of Appeals of New Mexico

41 P.3d 923

131 N.M. 642

2002 NMCA 25

Mack HENINGTON, Worker-Appellee, v. TECHNICAL-VOCATIONAL INSTITUTE and New Mexico Public School Insurance Authority, Employer/Insurer-Appellants.

No. 21,758.

Court of Appeals of New Mexico.

January 10, 2002.

Certiorari Denied February 26, 2002.

Gerald A. Hanrahan, Albuquerque, NM, for Appellee.

Phyllis S. Lynn, Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, NM, for Appellants.

Certiorari Denied, No. 27,336, February 26, 2002.

OPINION

WECHSLER, Judge.

{1} This case requires us to address the application of the statute of limitations in the context of a worker's claim for increased scheduled injury benefits based on the increased loss of use of his left knee. We hold that agreements to pay medical and compensation benefits are "compensation order[s]" within the meaning of NMSA 1978, § 52-1-56 (1989), even if they have not been reduced to writing and approved by the workers' compensation judge (WCJ). We further hold that the statute of limitations of NMSA 1978, § 52-1-31(A) (1987) applies to initial claims for benefits, not to later claims for increased benefits based on a change in a worker's physical condition. We further agree with the WCJ that NMSA 1978, § 52-1-43(B) (1989) does not limit the amount of time in which a worker may file a claim for increased benefits under Section 52-1-56. Thus, we affirm the order awarding Worker additional benefits.

Arguments on Appeal

{2} Respondents, Technical-Vocational Institute (T-VI) and the New Mexico Public School Insurance Authority, appeal from the decision of the WCJ awarding Mack Henington (Worker) increased benefits based on the increased partial loss of use of his left knee. On appeal, Respondents argue (1) that Worker's claim for increased benefits cannot be brought under Section 52-1-56 because there is no compensation order in this case; (2) that Worker's claim is barred by Section 52-1-31(A) because Worker knew or should have known of the increased impairment rating or loss of use of the knee more than two years and thirty-one days before the claim for increased benefits was filed; and (3) even if the claim is not barred by Section 52-1-31(A), it is barred because it was not filed during the time that Worker was receiving benefits under Section 52-1-43. Respondents also make arguments based on NMSA 1978, § 52-5-9 (1989), which they did not raise below and, therefore, we do not consider on appeal. See Gracia v. Bittner, 120 N.M. 191, 196-97, 900 P.2d 351, 356-57 (Ct. App.1995) (explaining that to preserve an issue about the application of a particular statute to a particular situation, appellant must have raised the issue in the trial court and invoked a ruling on the issue); Woolwine v. Furr's, Inc., 106 N.M. 492, 496-97, 745 P.2d 717, 721-22 (Ct.App.1987) (stating that to preserve an appellate issue, appellant must invoke ruling of trial court "on the same grounds argued in the appellate court").

Facts

{3} The facts in this case are not in dispute. Worker was employed by T-VI as Dean of Student Affairs. On October 22, 1992, he was injured when a drunken driver broadsided the T-VI car Worker was driving on T-VI business. During the collision, Worker's left knee hit the steering column of the T-VI car. He also injured his right knee, although less severely. He returned to work about ten days after the accident. Worker did not lose any wages while he was off work following the accident because the time was covered by sick leave.

{4} After returning to work, Worker continued to have problems with both knees. On February 12, 1993, Dr. Anthony Pachelli performed bilateral arthroscopic surgery to repair meniscal tears in both knees. Worker again used his vacation and sick leave for the time that he was unable to work and therefore did not lose any wages. Worker reached maximum medical improvement (MMI) from the initial injuries and surgery on June 28, 1993, at which point Dr. Pachelli assessed his impairment rating as 15% to each lower extremity.

{5} Although he had reached MMI in June 1993, Worker's left knee continued to hurt. In August 1993, Worker saw Dr. William Chesnut. Dr. Chesnut told Worker that if his symptoms continued to increase, he would need a total knee replacement (TKR) at some point in the future. Dr. Chesnut indicated that this procedure "should only be considered when [Worker] gets to the point that he is having pain daily that interfers [sic] with his quality of life and begins to have pain at night that awakens him or keeps him awake." Worker asked Dr. Chesnut if this opinion meant his impairment rating should be increased. However, Dr. Chesnut concurred in the 15% impairment rating to the left knee that had been assigned by Dr. Pachelli.

{6} Sometime in late 1993 or early 1994, Worker made a claim for scheduled injury benefits from the date of MMI forward. Ultimately, Respondents agreed to pay Worker scheduled injury benefits based on the 15% impairment rating for each knee for the period from June 28, 1993 through May 31, 1996. We note that the agreement to pay benefits was reached before this Court decided Lucero v. Smith's Food & Drug Centers, Inc., 118 N.M. 35, 37-38, 878 P.2d 353, 355-56 (Ct. App.1994) (holding that a worker need not prove an impairment as defined by statute in order to receive scheduled injury benefits). We further note that both sides have continued to equate the impairment rating to the loss of use. Thus, we refer to the impairment rating and the loss of use interchangeably.

{7} Worker's left knee continued to hurt off and on. Worker's knee locked up on him in January 1995. In May 1996, when he received his last payment of scheduled injury benefits, Worker was having significant pain in his left knee every few weeks.

{8} On July 13, 1998, Dr. Pachelli performed a TKR on Worker's left knee. Once again, Worker used his accumulated sick and annual leave to cover the time that he was off work. Worker reached MMI from this surgery on October 11, 1999. Unfortunately, the TKR did not eliminate the problems with Worker's left knee, which continued to be swollen with fluid and unable to be bent more than 85 degrees, sometimes less. The knee also continued to be painful and give out at times. Worker still could not play tennis, dance, or walk downhill. Even the vibration from a car could aggravate the pain. On October 11, 1999, Dr. Pachelli increased the impairment rating for the left knee from 15% to 50%.

{9} On December 22, 1999, Worker filed a complaint with the Workers' Compensation Administration. After some initial exchange of documents, the claim was reduced to one for increased scheduled injury benefits based on the increased impairment or loss of use of his left knee. Respondents contended that the claim was barred by Section 52-1-31(A). The WCJ determined the claim was not time barred, and Respondents appealed to this Court.

Applicability of Section 52-1-56

{10} Under Section 52-1-56, the WCJ may increase or decrease compensation benefits based upon changes in the worker's disability. Section 52-1-56 provides in pertinent part that "[t]he workers' compensation judge may, upon the application of the employer, worker or other person bound by the compensation order, fix a time and place for hearing."

{11} Respondents contend that Section 52-1-56 requires the existence of a compensation order. Thus, they argue that, because there was no compensation order below, Section 52-1-56 did not apply to Worker's claim for increased benefits. According to Respondents, Section 52-1-56 excludes cases such as this one, in which an employer pays benefits by agreement without a formal claim being filed. Worker does not disagree with Respondents' argument but contends that the principles of Section 52-1-56 and cases decided under it should apply to his claim. The WCJ essentially held that Section 52-1-56 applies to Worker's claim for increased benefits. We agree.

{12} The meaning of language used in a statute is a question of law that an appellate court reviews de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). In construing a statute, our goal is to give primary effect to the intent of the legislature. Draper v. Mountain States Mut. Cas. Co., 116 N.M. 775, 777, 867 P.2d 1157, 1159 (1994). We ascertain the intent of the legislature primarily from the language used in the statute. See id. We give such language its ordinary and plain meaning unless the legislature indicates a different interpretation is necessary. Id. However, we also recognize that the "beguiling simplicity [of the plain meaning rule] may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute's meaning." State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994); see also Draper, 116 N.M. at 777, 867 P.2d at 1159 (explaining that the intention of the legislature will prevail over the strict meaning of the literal language).

{13} We believe that this case is the type in which the plain language of the section would frustrate rather than advance the legislature's intent. The purpose of Section 52-1-56, as demonstrated by its language and by our opinions concerning its predecessor statutes, is to give a WCJ the power to increase or decrease awards of compensation upon a proper showing. See Gallegos v. City of Albuquerque, 115 N.M. 461, 463, 853 P.2d 163, 165 (Ct.App.1993) (explaining that employer seeking reduction in awarded benefits needs to show a decrease in worker's disability whereas worker seeking increase in benefits has burden to show increase in disability); St. Clair v. County of Grant, 110 N.M. 543, 547-48, 797 P.2d 993, 997-98 (Ct.App. 1990) (stating that district court possesses continuing jurisdiction to reopen workers' compensation award under Section 52-1-56); Glover v. Sherman Power Tongs, 94 N.M....