Levario v. Ysidro Villareal Labor Agency

• Decision Date: 24 October 1995
• Docket Number: No. 15596,15596
• Citation: 1995 NMCA 133,906 P.2d 266,120 N.M. 734
• Parties: Ofelia LEVARIO, Worker-Appellee, v. YSIDRO VILLAREAL LABOR AGENCY and Mountain States Mutual Casualty Company, Employer/Insurer-Appellants.
• Court: Court of Appeals of New Mexico

Page 266

906 P.2d 266

120 N.M. 734

Ofelia LEVARIO, Worker-Appellee, v. YSIDRO VILLAREAL LABOR AGENCY and Mountain States Mutual Casualty Company, Employer/Insurer-Appellants.

No. 15596.

Court of Appeals of New Mexico.

Oct. 24, 1995.

[120 N.M. 735] Henry J. Baca, Las Cruces, for Worker-Appellee.

Leonard J. Piazza, Sager, Curran, Sturges & Tepper, P.C., Las Cruces, for Employer/Insurer-Appellants.

OPINION

WECHSLER, Judge.

Employer appeals from the compensation order determining Worker's entitlement to permanent partial disability benefits under the Workers' Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (Repl.Pamp.1991 & Cum.Supp.1995) (the Act). The issues on appeal are whether the Workers' Compensation Judge (WCJ) erred in: (1) applying Section 52-1-26.4 (physical capacity modification); (2) finding that a causal connection was established between Worker's shoulder impairment and her work-related accident; and (3) applying Section 52-1-26.2 (age modification). We affirm.

Facts

Worker was employed as an onion sorter at the time of her accident. She slipped on an onion on June 27, 1992, while in the course and scope of her employment. Employer received the requisite written notice of Worker's accident.

The amendments to the Act effective after January 1, 1991, govern Worker's entitlement to benefits. See § 52-1-48. Under Sections 52-1-26 to 52-1-26.4, if a worker, after reaching maximum medical improvement (MMI), earns less than his or her pre-injury wage, the worker's permanent partial disability is determined by first calculating the worker's impairment, see § 52-1-24(A) (defining impairment), and then adding a percentage based on age, education, and physical-capacity modifications.

Worker was forty-four years old when she reached MMI and forty-five years old at the time of the hearing that resulted in the compensation order. The WCJ found that Worker injured her ankle, back, and shoulder in the accident.

Worker was employed seasonally as an onion sorter from 1990 to 1992. Her duties included standing by a conveyor belt, putting non-marketable onions into a burlap bag, picking up onions from the floor and placing them into twenty-five-pound bags, and lifting and carrying twenty-five-pound bags to the stacker about twenty times a day. In addition to her seasonal employment with Employer, Worker had another seasonal job as a pine-seed sorter for Plant Propagation Technologies from 1990 to 1992. This job required lifting seedlings weighing approximately one ounce and occasionally lifting a twelve-pound block of pine seedlings.

From 1986 to 1992, Worker was also employed seasonally with Joy Canning as a green chile sorter. Worker stood by a conveyor and separated mild green chile according to grade and color. She did not lift anything heavier than one green chile. The Pancake Alley Restaurant employed Worker as a dishwasher from 1987 to 1989. In this position, Worker occasionally carried dish tubs that weighed approximately twenty to twenty-five pounds. Typically, Worker lifted dishwasher trays weighing between six and twelve pounds.

From 1980 to 1987, Worker was employed as a maid for the Royal House Motel. This job required her to clean rooms, make beds, and fold and carry linens. Worker testified that she moved dressers that weighed more than fifty pounds, pushed a linen cart that weighed more than fifty pounds, and occasionally turned mattresses that weighed more than twenty-five pounds.

Based on the foregoing, the WCJ determined that Worker is permanently partially disabled and, after reaching MMI, unable to return to work at a wage equal to or greater than Worker's pre-injury wage. The WCJ found Worker's pre-injury physical capacity to be "heavy," and Worker's residual physical capacity to be "sedentary." See § 52-1-26.4(B), (C) (physical capacity modification). The WCJ further determined that Worker was forty-five years old at the time of the disability rating, see § 52-1-26.2(B)(2) (age modification), and that Worker had a fifth-grade education. See § 52-1-26.3(B)(1) (education modification).

I. Physical Capacity Modification

Section 52-1-26.4(B) provides that "[t]he award of points to a worker shall be based upon the difference between the physical capacity necessary to perform the worker's usual and customary work and the worker's residual physical capacity." (Emphasis added.) "Usual and customary" work is characterized as "heavy" when a worker lifts "over fifty pounds occasionally or up to fifty pounds frequently." Section 52-1-26.4(C)(1).

Employer contends that the WCJ erred in considering Worker's employment history of a motel maid and dishwasher in classifying Worker's usual and customary work. Employer argues that the WCJ should have considered only Worker's employment as an agricultural sorter, the employment Worker held during the three years before the accident.

"Usual and customary" is not defined in the applicable provisions of the Workers' Compensation Act. Accordingly, we presume that the legislature intended the ordinary and common meanings of these words to apply. See, e.g., Whitely v. New Mexico State Personnel Bd., 115 N.M. 308, 311, 850 P.2d 1011, 1014 (1993); State v. Ruffins, 109 N.M. 668, 671, 789 P.2d 616, 619 (1990). For guidance, we turn to Black's Law Dictionary 1544 (6th ed. 1990), which defines "usual" as "commonly established, observed, or practiced" and "[t]hat which happens in common use or occurs in ordinary practice or course of events." "Customary" is defined as "[a]ccording to custom or usage; founded on, or growing out of, or dependent on, a custom." Id. at 385.

We decline to interpret "usual and customary" as narrowly as Employer requests. Section 52-1-26.4 does not set forth any definite time frame for considering an applicable employment history, and we do not believe it appropriate to adopt a rigid time frame or rule. Cf. § 52-1-26.3(C) (skills may be measured by reviewing jobs in the ten years preceding the disability determination); see also Dona Ana Sav. & Loan Ass'n v. Dofflemeyer, 115 N.M. 590, 594, 855 P.2d 1054, 1058 (1993) ("courts not permitted to read into statute language that is not there, especially when statute makes sense as written") (citing State ex rel. Barela v. New Mexico State Bd. of Educ., 80 N.M. 220, 222, 453 P.2d 583, 585 (1969)). By negative inference unlike Section 52-1-26.3(C) (ten years for skills), Section 52-1-26.4 does not limit the WCJ to any particular time frame, whether it be three years or ten years. See, e.g., State v. Lucero, 114 N.M. 460, 462, 840 P.2d 607, 609 (Ct.App.1992) ("When there are provisions in analogous statutes that a party contends should be present in the statute at issue in the case, we utilize the process of negative inference to reason that the absence of such provisions in the statute at issue is intentional.").

Although guidance from other jurisdictions is necessarily limited because of the uniqueness of the New Mexico Workers' Compensation Act, we note that other courts generally have not adopted a narrow interpretation of the terms "usual and customary." See, e.g., Beckman v. John Morrell & Co., 462 N.W.2d 505, 508 (S.D.1990) ("A person's usual and customary line of employment may be determined by such factors as the skills or abilities of the person, the length of time the person has spent in the type of work, the proportion of time the person has spent in the type of work when compared to the worker's entire working career, and the duties and responsibilities of the person at the work place."); Smith v. Industrial Comm'n, 735 P.2d 921, 923 (Colo.Ct.App.1986) (noting that Colorado regulations provide that workers are deemed permanently precluded from engaging in their usual and customary occupation when they are unable to perform work for which they have previous training or experience); Vasquez v. Workers' Compensation Appeals Bd., 226 Cal.App.3d 867, 277 Cal.Rptr. 102, 106 (1991) (recognizing a distinction between a worker's usual and customary occupation and the position in which the worker was engaged at the time of the injury) (rev. denied Mar. 20, 1991).

We follow the lead of South Dakota, Colorado, and California, and hold that "usual and customary" work is not limited to the job held by the worker at the time of injury, or to the worker's job within a specific time frame. Cf. Folz v. State, 110 N.M. 457, 462 n. 3, 797 P.2d 246, 251 n. 3 (1990) ("[W]hen the legislature does not provide an express definition of an essential statutory term, it must be assumed that the legislature was aware of the construction given that term in the judicial decisions of other jurisdictions."). Rather, we take a broader view of the statute and conclude that it is the WCJ's prerogative, as fact finder, to consider, within reason and practicality, a worker's entire work history and experience in order to determine what is a worker's "usual and customary" work. See, e.g., Lopez v. Employment Sec. Div., 111 N.M. 104, 106, 802 P.2d 9, 11 (1990) ("Enactments of the legislature are to be interpreted to accord with common sense and reason.").

We analyze this case under the whole record standard of review, as we would all workers' compensation cases. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact finder. Id. at 128, 767 P.2d at 367. As mentioned earlier, testimony was presented that Worker's employment history includes frequently lifting objects weighing twenty-five pounds and occasionally moving objects weighing more than fifty pounds.

We note that Worker's longest employment, from 1980 to 1987, was as a motel maid and that Worker was employed as a motel maid until five years prior to...