Kennecott Copper Corp. v. Chavez
| Citation | 1990 NMCA 133,111 N.M. 366,805 P.2d 633 |
| Decision Date | 13 December 1990 |
| Docket Number | No. 12063,12063 |
| Parties | KENNECOTT COPPER CORPORATION, Claimant-Appellee, v. Fabian CHAVEZ, State Superintendent of Insurance, and New Mexico Subsequent Injury Fund, Respondents-Appellants. |
| Court | Court of Appeals of New Mexico |
The New Mexico Subsequent Injury Fund (Fund) appeals the workers' compensation judge's (judge) determination that the Fund is liable for 50% of payments made by employer to worker. The Fund raises several issues. It initially argues that employer had insufficient knowledge of any preexisting impairment to allow employer to recover, despite the late filing of the certificate of preexisting impairment. See Fierro v. Stanley's Hardware, 104 N.M. 50, 716 P.2d 241 (1986) (). In this appeal, worker was disabled in July 1986. Because worker became permanently disabled two months after the effective date of the 1986 amendments, these terms are controlling. NMSA 1978, Sec. 52-2-6 (Cum.Supp.1986); Rader v. Don J. Cummings Co., 109 N.M. 219, 784 P.2d 38, 41 (Ct.App.1989) (). Based on several other contentions involving substantial evidence review, the Fund also contends the judge's decision was erroneous even if employer had the required knowledge of the preexisting impairment. We hold that employer had actual knowledge of the preexisting condition and that substantial evidence otherwise supported the judge's determination. We therefore affirm the judge's decision.
Worker was employed by employer from 1970 through 1986. In August 1977, he suffered a knee injury playing baseball. The knee later disabled worker in September 1977, while he was at work. He underwent surgery to remove cartilage in 1978 and spent nine months recuperating from the surgery before returning to work. Worker was not terminated from his employment before or during the nine-month recuperation period. Following his return to work, worker performed all the tasks required of his position and experienced no difficulty with his knee.
In July of 1986, worker reinjured his knee while attempting to jump onto a bulldozer ladder. On this occasion, he tore a ligament in the knee. After this later accident, employer settled a compensation claim filed by worker and then filed the action underlying this appeal, seeking reimbursement from the Fund. Employer had not filed a certificate of pre-existing impairment until after the 1986 accident. The judge ordered the Fund to reimburse employer for 50% of the benefits paid to worker, pursuant to the New Mexico Subsequent Injury Act provisions applicable to this case (the Act). See NMSA 1978, Secs. 52-2-1 to -13 (Orig. Pamp. and Supp.1986, to extent applicable).
The Fund contends the only evidence of employer's knowledge is that employer knew that worker: (1) was injured in 1977; (2) had surgery on his knee; and (3) returned to work after a nine-month recuperation period. Additionally, the Fund maintains there was no evidence that worker walked with a limp after returning to work or that he had difficulty performing his tasks. The Fund essentially argues that there were no facts to "tip off" employer to the fact that worker had not fully and completely recovered from his surgery. For all employer knew, the Fund reasons, worker's knee had returned to 100% of its pre-injury strength.
The Fund contends the evidence was insufficient to support the finding that employer knew of worker's preexisting impairment. This court will not reweigh the evidence, but will review only to determine whether substantial evidence on the whole record supports the decision. See generally Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). Since one purpose of the Act is to encourage employers to hire or retain workers they know are handicapped, the Fund contends such scanty evidence cannot provide the basis for a finding that employer knew of the existence of a preexisting impairment. See Padilla v. Chavez, 105 N.M. 349, 732 P.2d 876 (Ct.App.1987) ().
We agree that, in some instances, mere knowledge of an injury and subsequent medical treatment is not sufficient to allow an inference that an employer knew of any permanent impairment suffered by worker. Carter v. Kansas Gas & Elec. Co., 5 Kan.App.2d 602, 621 P.2d 448 (1980) (), overruled on other grounds, Denton v. Sunflower Elec. Co-op., Inc., 242 Kan. 430, 748 P.2d 420 (1988); see also Hinton v. S.S. Kresge Co., 3 Kan.App.2d 29, 592 P.2d 471 (1978) (). Many types of injuries heal without leaving a permanent impairment. In other cases, however, the injury is of such a serious nature, or is of such a particular type, that an inference of knowledge of permanent impairment is well founded. See Connors v. Haywood Floor Co., 14 A.D.2d 947, 221 N.Y.S.2d 150 (1961) (). We believe the facts of this appeal present us with such a situation.
Worker's prior injury was to a knee and resulted in the removal of cartilage. Based on the evidence in this appeal and inferences to be drawn from such evidence, this is the type of injury from which it is notoriously hard to recover. Worker was not able to return to work within a short time, but underwent an extensive recuperation period. Significantly, testimony was adduced concerning the medical profession's view of such injuries. Dr. Grace, referring to the widely accepted American Medical Association (AMA) guide to the evaluation of permanent impairment, testified that an operation such as that performed on worker's knee results in a 10% permanent impairment to the lower extremity, even without complications. Similarly, according to Dr. Grace's testimony, the standards of the American Academy of Orthopedic Surgeons show that removal of cartilage, with no subsequent complications, results in a 5% permanent impairment to the lower extremity.
Although employer did not have the benefit of this medical opinion at the time worker was rehired, it did have the knowledge of the nature of worker's injury and the long recovery period. An employer is not required to know the medical specifics of an impairment, as long as knowledge of the impairment is present. Denton v. Sunflower Elec. Co-op., 12 Kan.App.2d 262, 740 P.2d 98 (1987) (). The testimony regarding the medical profession's view of the injury adds support to our conclusion that, under the facts of this appeal, the injury was such that knowledge of the impairment can be inferred.
The fact that worker was able to return to his former employment and perform with no difficulty for a long period of time does not militate against the result we reach. One obvious purpose of the Act is to encourage the rehiring and retention of workers who have suffered injuries resulting in permanent impairments. Padilla v. Chavez. It would make little sense to differentiate between workers initially hired despite an impairment and workers who, after being hired, suffered an impairment.
We believe the judge could reasonably find from the evidence that, when worker returned to his job, employer did not know whether he would be able to completely perform his duties or whether his knee would prove troublesome. Employer did know, however, of the surgery and recuperation period. Given this knowledge, it would have been natural for employer to be somewhat reluctant to reemploy worker. His duties involved operating heavy machinery, and he was required to climb on and off large bulldozers during the course of a usual workday. He also performed other jobs requiring significant amounts of heavy labor. Under this set of facts, it was entirely reasonable to expect that worker's knee injury would cause him difficulty performing his job. Despite this knowledge and the potential for later re-injury, employer allowed worker to return to his job, thereby serving the purposes of the Act.
Employer must have had actual knowledge of employee's disability before the subsequent injury. Padilla v. Chavez. Because employer knew of worker's disability at the time worker returned to work, neither worker's later ability to do his job well nor lack of symptoms of impairment affects our analysis of the issue.
Although we recognize few cases have addressed the issue, our holding is nonetheless consistent with prior New Mexico case law. Our supreme court has held that an employer who knew only that worker had "some sort of problem" with his eye had sufficient knowledge to allow the certificate to be filed after the subsequent injury. Fierro v. Stanley's Hardware. In so holding, Fierro reversed this court's decision, which had held this knowledge insufficient. See Fierro v. Stanley's Hardware. If general, and somewhat vague, knowledge of "some sort of problem" is sufficient knowledge, we have no difficulty in concluding that knowledge of knee surgery and a resulting...
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