Toynbee v. Mimbres Memorial Nursing Home
| Decision Date | 22 May 1992 |
| Docket Number | No. 12778,12778 |
| Parties | Louise TOYNBEE, Claimant-Appellant, v. MIMBRES MEMORIAL NURSING HOME, and Mountain States Mutual Casualty Company, Respondents-Appellees. |
| Court | Court of Appeals of New Mexico |
Worker appeals from an order of the workers' compensation judge (WCJ) finding that she was no longer temporarily totally disabled and finding that she is fifteen percent permanently partially disabled. The appeal poses three issues: (1) whether the WCJ erred in failing to determine that Worker was temporarily totally disabled as a matter of law; (2) whether findings of fact adopted by the WCJ are supported by substantial evidence; and (3) whether the WCJ erred in failing to award proper attorney's fees. For the reasons discussed herein, we affirm the WCJ's determination as to the percentage of Worker's permanent partial disability, and remand for adoption of additional findings of fact and conclusions of law and entry of an amended compensation order relating to the duration of Worker's temporary total disability and the award of attorney's fees.
Worker was employed as a nurse's aide at Mimbres Memorial Nursing Home (Employer) in Deming. Prior to being hired by Employer, Worker had been employed as a salesclerk and as a convenience store clerk. On July 2, 1986, while working for Employer, she injured her low back and left knee while assisting a patient. Employer paid Worker's medical expenses and temporary total disability benefits from August 4, 1986, to November 24, 1988, when it reduced Worker's benefits from $122.67, to twenty percent disability or $24.53 per week. Thereafter, Worker filed an action for workers' compensation benefits seeking to extend the payment of temporary total disability payments, and requesting an award of permanent partial disability and vocational rehabilitation benefits.
Employer and its insurance carrier (Respondents) filed a timely response rejecting the recommended resolution in part. In rejecting the proposed resolution, Respondents argued that Worker had reached maximum medical improvement; that she had sustained a twenty-percent permanent disability; that she was no longer temporarily totally disabled; and that Worker could obtain suitable employment without the necessity of vocational rehabilitation.
Following a hearing on the merits, the WCJ adopted findings of fact and conclusions of law determining that Worker sustained work-related injuries to her back and left knee and was "permanently partially disabled to the extent of 15%" of her whole body. The findings determined that as a result of her accident Worker suffered "an impairment to a member [left knee] appearing in Section 52-1-43(B) of the ... Act" and that such injury was "separate and distinct" from the impairment resulting from the injury to her back. The WCJ also found that Worker "suffers from disabling pain"; that she was unable to return to her former job; and that she was in need of vocational rehabilitation benefits consisting of job placement.
Based upon the findings of fact and conclusions of law adopted by the WCJ, Worker was awarded benefits at the rate of $131.84 per week for temporary total disability from July 16, 1986, to November 15, 1988, and thereafter was awarded fifteen percent permanent partial disability benefits at the rate of $19.78 per week. The WCJ also awarded Worker the sum of $3,280 for her attorney's fee, plus gross receipts tax thereon, and denied her claim alleging that Respondents had reduced her compensation benefits in bad faith.
The WCJ found that Worker injured both her low back and left knee as a result of her accident on July 2, 1986. The WCJ also determined that from July 16, 1986, until November 16, 1988, Worker was temporarily totally disabled; that Worker had "reached maximum medical improvement to a reasonable medical probability on November 16, 1988"; and from July 16, 1986, she was temporarily totally disabled with an "impairment [of] 15% of the whole body."
Worker argues that the WCJ disregarded undisputed medical testimony indicating that at the time of trial on July 27, 1989, in addition to the disability resulting from her back injury, she also was recovering from an operation on her left knee and was still undergoing physical therapy following her surgery. Worker also contends that the WCJ erred in finding that she was no longer temporarily totally disabled after November 15, 1988, because she had not yet attained maximum medical improvement of her left knee and she had not been provided necessary vocational rehabilitation benefits.
Both Worker and Respondents agree that the Interim Act (1986 N.M.Laws, ch. 22) is applicable to the facts of this case. NMSA 1978, Section 52-1-26 (Cum.Supp.1986), in effect at the time of Worker's accident, provided: "As used in the Workmen's Compensation Act ..., 'temporary total disability' means the inability of the workman, by reason of accidental injury arising out of and in the course of his employment, to perform his duties prior to the date of his maximum medical improvement."
In contesting the amount of her award, Worker challenges the sufficiency of the evidence to support the WCJ's finding that she was only permanently partially impaired in the amount of "15% of the whole body." Worker contends that contrary to this finding, she was entitled to continue receiving temporary total disability because she had not yet been released to return to work by her doctor, Respondents failed to present evidence that she was capable of earning a comparable wage, and because both Drs. Alan Davis and Arthur Bieganowski testified that she should not seek employment until her medical condition improved. We think these contentions are without merit.
Dr. Davis, an orthopedic surgeon, agreed that Worker should remain away from her former work as a nurse's aide; however, he testified that he believed she could be released to do other types of work which she was qualified to perform. Dr. Reymundo Molina, a vocational rehabilitation evaluator, testified there were other jobs Worker could perform which paid comparable wages. Dr. Molina stated that he had reviewed Worker's medical history, educational background, and experience. He found that after conducting a labor market analysis, and after considering both her back and knee conditions, Worker was capable of performing other types of work such as a special education assistant or a teacher's aide, earning $6.56 per hour and $6.72 per hour respectively, together with fringe benefits.
On appeal, we review the whole record in the light most favorable to the agency decision, but do not review favorable evidence with total disregard of any contrary evidence. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). The burden of establishing that a worker is totally or partially disabled is upon the worker. See Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985). Whether post-injury wages which a worker is shown to be capable of earning are comparable to pre-injury wages is a question of law under the applicable statute. See Carpenter v. Arkansas Best Corp., 112 N.M. 1, 810 P.2d 1221 (1991). Applying the above authorities to the record on appeal, we conclude that the record supports the WCJ's finding that Worker was able to engage in other types of work consistent with her qualifications and physical limitations.
Worker also argues the WCJ found that she had suffered a lower percentage of permanent partial disability than that which had originally been stipulated to by the parties. Prior to trial, the parties drafted and signed a proposed pretrial order which included a proposed stipulation that "[Worker's] present anatomical impairment is to the knee (5%) and lower back (15-20%)." The order, however, was never entered because of a disagreement of the parties concerning certain of its provisions. At trial, Worker sought to establish that the percentage of disability to her back was higher than that set forth in the proposed stipulation. In response to Worker's assertions that she should be permitted to present evidence that the disability to her back exceeded that contained in the proposed order, the WCJ stated, "[Counsel for Worker is] at liberty to submit whatever evidence you have to the extent that it shows disability, whether it's 15-30%, 15-20%, whatever the figure is." In view of the fact that the pretrial order was never entered, that Worker sought to present evidence outside the parameters of the claimed stipulation, and the WCJ ruled that he would not limit the parties to a specific percentage of disability, we think it is clear that the proffered stipulation was not binding on the parties.
We affirm the finding of the WCJ determining that Worker was fifteen percent partially disabled as to her body as a whole. The WCJ found that Worker Our examination of the record indicates that the medical experts called by Worker to testify concerning causation and the percentage of Worker's disability resulting from her work-related accident did not testify that she suffered a permanent physical impairment to her body as a whole, in excess of fifteen percent under the existing American Medical Association's (AMA) guides to the evaluation of permanent impairment, or under a comparable AMA publication. See NMSA 1978, Sec. 52-1-25 (Cum.Supp.1986). Absent such testimony, Worker's argument on appeal that she is entitled to...
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