Leo v. Cornucopia Restaurant

• Decision Date: 19 July 1994
• Docket Number: No. 14854,14854
• Citation: 118 N.M. 354,1994 NMCA 99,881 P.2d 714
• Parties: Rogelio LEO, Claimant-Appellee and Cross-Appellant, v. CORNUCOPIA RESTAURANT, Employer, and Mountain States Mutual Casualty Company, Insurer, Respondents-Appellants and Cross-Appellees.
• Court: Court of Appeals of New Mexico

Page 714

881 P.2d 714

118 N.M. 354

Rogelio LEO, Claimant-Appellee and Cross-Appellant, v. CORNUCOPIA RESTAURANT, Employer, and Mountain States Mutual Casualty Company, Insurer, Respondents-Appellants and Cross-Appellees.

No. 14854.

Court of Appeals of New Mexico.

July 19, 1994.

Certiorari Denied Sept. 1, 1994.

[118 N.M. 355] Victor S. Lopez, Agnes Fuentevilla Padilla, Law Office of Victor S. Lopez, Albuquerque, for claimant-appellee and cross-appellant.

Robert Bruce Collins, Donald C. Clifford, Albuquerque, for respondents-appellants and cross-appellees.

Robert M. Aurbach, Gen. Counsel, Gordon S. Sargent, Asst. Gen. Counsel, New Mexico Workers' Compensation Admin., Albuquerque, for amicus curiae, New Mexico Workers' Compensation Admin.

William H. Carpenter, Chairman, New Mexico Trial Lawyers Ass'n, Michael B. Browde, Albuquerque, for amicus curiae, New Mexico Trial Lawyers Ass'n.

OPINION

DONNELLY, Judge.

Employer and Insurer (Respondents) appeal, and Rogelio Leo (Claimant) cross-appeals, from a compensation order requiring Respondents to pay Claimant compensation for a permanent partial disability of 61%, and a later order directing that Claimant's attorney fees be paid one-half by Claimant and one-half by Respondents.

Respondents contend in their appeal that the Workers' Compensation Judge (Judge) erred as a matter of law in determining Claimant's residual physical capacity under NMSA 1978, Section 52-1-26.4 (Repl.Pamp.1991) (effective January 1, 1991). In his cross-appeal, Claimant contends that (1) the Judge erred as a matter of law in determining the amount of his impairment rating; and (2) the Judge erred as a matter of law in her application of NMSA 1978, Section 52-1-54(F) (Repl.Pamp.1991) (effective January 1, 1991), relating to the award of attorney fees.

After initial briefing, this Court invited the participation of amicus curiae. Both the New Mexico Trial Lawyers Association and the Workers' Compensation Administration submitted amicus briefs. These briefs were of significant assistance to this Court in resolving this case. For the reasons discussed below, we affirm the Judge's determination of Claimant's residual physical capacity, reverse the determination of Claimant's impairment rating, and reverse the determination that Respondents are liable for only one-half of Claimant's attorney fees.

FACTS

In April 1991 Claimant was employed as a kitchen helper at the Cornucopia Restaurant (the Restaurant) in Albuquerque. His position was classified as heavy labor. Section 52-1-26.4(C)(1). On April 20, 1991, while working at the Restaurant, Claimant slipped and fell on a stairway, injuring his head and back. He was temporarily totally disabled from that date until February 11, 1992.

Prior to his employment with the Restaurant, Claimant had a history of preexisting heart and lung problems. He also suffered from rheumatic heart disease, asthma, and bronchitis. In 1989 the aortic and mitral valves in his heart were surgically replaced. As a result of the valve replacement, Claimant takes Coumadin, an anticoagulant, and Lanoxin to slow down atrial fibrillation.

Before trial, Claimant made a formal offer of judgment of 20% permanent partial disability; Respondents rejected the offer. Also prior to trial, the Parties stipulated to Claimant's age, education, vocational preparation, and to the fact that all Claimant's previous employment had involved medium or heavy labor. Following trial, the Judge found, among other things, that: Claimant's preexisting heart and lung conditions together represented a preexisting physical impairment of 58%; the injury to Claimant's back resulted in a permanent physical impairment of 5%; the fall down the stairs did not exacerbate or accelerate Claimant's heart and lung conditions, although the heart and lung conditions imposed significant restrictions on the treatment of Claimant's back condition and on his recovery from the back injury; prior to the injury, Claimant had been performing heavy labor; and after the injury, Claimant's back condition in combination with the heart and lung conditions limited him to performing sedentary jobs. The Judge determined that the degree of Claimant's permanent partial disability should be calculated by use of the statutory formula under NMSA 1978, Sections 52-1-26, -26.1, -26.2, -26.3, and -26.4 (Repl.Pamp.1991) (effective January 1, 1991).

Based on the above facts, pursuant to Section 52-1-26.1, the Judge calculated Claimant's permanent partial disability rating based on an impairment rating of 5% and a residual physical capacity rating of eight, representing the points assigned by statute when a worker was doing heavy labor before an injury and is limited to sedentary labor after an injury. Based on the formula, the Judge determined that Claimant was 61% permanently partially disabled.

Claimant's attorney then filed a motion for attorney fees. In his motion and supporting documents, Claimant informed the Judge of the offer of judgment made prior to trial. Claimant argued that, under Section 52-1-54(F) (effective January 1, 1991), Respondents should pay 100% of the attorney fees because they rejected an offer of judgment that was far more favorable to them than the decision that was subsequently entered. The Judge held that Section 52-1-54(F) (effective January 1, 1991) did not apply, and entered an order directing that attorney fees be paid one-half by Claimant and one-half by Respondents.

STATUTORY CONSTRUCTION

Resolution of each of the issues in this case necessitates inquiry into the meaning and application of certain recent amendments to the Workers' Compensation Act, which became effective January 1, 1991.¹ Thus, we begin our analysis by reviewing several pertinent principles of statutory construction. When the legislature enacts a statute that is clear and unambiguous, it is the duty of the courts to enforce the law as written. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994); V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993). "A statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses." State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct.App.1992). The determination of whether the language of a statute is ambiguous is a question of law. See New Mexico State Bd. of Educ. v. Board of Educ., 95 N.M. 588, 590, 624 P.2d 530, 532 (1981).

When faced with an ambiguous statute, the primary task of the courts is to determine the intent of the legislature and construe the statute in a manner that gives effect to that intent. Helman, 117 N.M. at 353, 871 P.2d at 1359; State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988). In making this determination, the courts look primarily to the language used in the statute. Klineline, 106 N.M. at 735, 749 P.2d at 1114. However, we must not be misled by simplicity of language when the other portions of a statute call its meaning into question, or the language of a section of an act conflicts with an overall legislative purpose. Helman, 117 N.M. at 353, 871 P.2d at 1359. Thus, in addition to the language of the statute, we may also consider its history and background. Id.; Klineline, 106 N.M. at 735, 749 P.2d at 1114.

With these principles in mind, we next examine the series of amendments enacted by the legislature in 1990, which apply to the determination of partial disability. The 1990 amendments followed a series of other substantive legislative changes to the Workers' Compensation Act. See Coslett v. Third St. Grocery, 117 N.M. 727, 729-30, 876 P.2d 656, 658-59 (Ct.App.1994); 1 Carlos G. Martinez, New Mexico Workers' Compensation Manual Sec. 1.04, at 1-22 to -25 (1993); Kelly Brooks et al., Workers' Compensation 22 N.M.L.Rev. 845, 845-47 (1992) (Survey). As noted in Coslett, the various changes have often been a reflection of compromises between competing interests. Coslett, 117 N.M. at 729-30, 876 P.2d at 658-59.

The changing and competing policy interests behind compensation laws are reflected in the successive legislative changes defining disability. Most compensation laws adopt one of three approaches in defining disability: a definition based on wage loss, a definition based on impairment rating, or a definition based on a reduction in an individual's ability to perform work. 1 Martinez, supra Sec. 8.03. Prior to 1986, disability under our Workers' Compensation Act was defined in terms of the capacity to work. See NMSA 1978, Secs. 52-1-24, -25 (Orig.Pamp.); Adams v. Loffland Bros. Drilling Co., 82 N.M. 72, 74, 475 P.2d 466, 468 (Ct.App.1970). In 1986 the definition was changed to incorporate concepts of all three approaches. NMSA 1978, Secs. 52-1-24, -25 (Cum.Supp.1986) (effective until July 1, 1987) (interim act cases); 1 Martinez, supra Secs. 8.03 to 8.06. In 1987 the statutory definition of disability was again amended to incorporate the concepts of both impairment and inability to perform work. See NMSA 1978, Secs. 52-1-25, -26 (Repl.Pamp.1987); Gomez v. B.E. Harvey Gin Corp., 110 N.M. 100, 102, 792 P.2d 1143, 1145 (1990); Martinez v. Darby Constr. Co., 109 N.M. 146, 149, 782 P.2d 904, 907 (1989). Martinez observes that, as a practical matter, the definition of disability in the 1987 Act represents a return to the pre-1986 definition of disability. 1 Martinez, supra Sec. 8.07.

In 1990 the legislature again amended the definition of disability. Section 52-1-26 (effective January 1, 1991). The definition of permanent partial disability under the 1990 legislative amendments continues to rely on concepts of impairment and inability to perform work. Id. However, instead of a broad statement of factors to be considered in determining the degree of permanent partial disability, the 1990 amendments provide a specific formula that is used to determine the degree of permanent partial disability. See Secs. 52-1-26, -26.1,...