Trujillo v. City of Albuquerque, 14120

• Court: Court of Appeals of New Mexico
• Citation: 1993 NMCA 114,116 N.M. 640,866 P.2d 368
• Docket Number: No. 14120,14120
• Parties: Reducindo TRUJILLO, Claimant-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee.
• Decision Date: 07 September 1993

Page 368

866 P.2d 368 116 N.M. 640 Reducindo TRUJILLO, Claimant-Appellant,
v.
CITY OF ALBUQUERQUE, Respondent-Appellee. No. 14120. Court of Appeals of New Mexico. Sept. 7, 1993.
Writ of Certiorari Denied
Nov. 11, 1993.

Page 370

[116 N.M. 642] David Duhigg, Duhigg, Cronin & Spring, P.A., Albuquerque, for claimant-appellant.

Paula G. Maynes, Montgomery & Andrews, P.A., Santa Fe, for respondent-appellee.

OPINION

DONNELLY, Judge.

Claimant appeals from a compensation order awarding permanent partial disability and attorney's fees. Claimant contends that (1) the Workers' Compensation Judge (Judge) erred in failing to find that he was totally permanently disabled; (2) Respondent, City of Albuquerque (City), acted in bad faith in refusing to pay disability benefits prior to a judicial determination of disability; and (3) the Judge's decision resulted from bias or prejudice. We affirm in part and reverse in part.

FACTS

Claimant suffered an injury to his left shoulder on September 2, 1988, while working as a groundskeeper and handyman for the City at the Rio Grande Zoo. At the time of the injury, Claimant was fifty-four years old and had previously been determined to be totally disabled under the federal Social Security Act as a result of a back injury that occurred prior to his employment with the City. Payment of Social Security benefits, however, had been discontinued before the date Claimant sustained his work-related injury involved this case. Prior to his September 2, 1988, injury, Claimant had also been found to be totally permanently incapacitated for the purposes of receiving benefits under the Public Employees Retirement Act.

Testimony at trial indicated that Claimant completed only the fourth grade, that he speaks Spanish as a first language, and that he has difficulty speaking and understanding English. Other evidence indicated that Claimant has been classified as falling within the borderline range of intelligence and has below-average literacy skills. Claimant's job duties at the time of the September 1988 accident included work as a laborer, changing light bulbs, installing doors, and working on lavatory sinks. Claimant had previously been employed as a custodian, laborer, steel cutter, railroad laborer, groundskeeper, handyman, and agricultural worker.

After Claimant's September 1988 injury, he was examined or treated by a number of doctors and therapists. Claimant underwent surgery on February 20, 1989, to repair a torn rotator cuff. His postoperative diagnosis revealed that he was also suffering from an impingement syndrome due to degenerative arthritis, and joint and bicipital tendinitis. He reached maximum medical improvement on May 21, 1991.

Respondent presented evidence indicating that Claimant had an impairment rating between 12% to 15%. Virtually all of the specialists who treated him agreed that he could not return to his former employment as a handyman at the zoo, and that he should be confined to light-duty or sedentary work with restrictions against any overhead lifting or lifting over twenty-five pounds. Dr. Barry M. Diskant conducted an independent evaluation of Claimant on behalf of the City. He concluded that Claimant had a 14% permanent partial impairment of his left upper extremity, that he had reached maximum medical improvement, and that additional therapy would not assist in alleviating his condition. He also concluded that Claimant could perform light work but could no longer carry out his former occupation of handyman.

On July 22, 1991, Claimant filed a claim for workers' compensation benefits. At the hearing, the City's vocational expert, Debra Brewster, testified that the restrictions placed on Claimant's work activities by his medical care providers resulted in a 28.6% disability rating. In contrast, Claimant's vocational expert, Barbara Jarvis, testified that because of Claimant's age and physical and mental limitations he is not "qualified for work." At the conclusion of the hearing, the Judge found that Claimant had been temporarily totally disabled from the date of the accident until the date of maximum medical

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[116 N.M. 643] improvement, and thereafter he was 38% permanently partially disabled.

I. Extent of Disability

Claimant argues that the Judge erred in failing to find that he was permanently totally disabled, and that the Judge's finding that he was only 38% permanently partially disabled is not supported by substantial evidence under a whole-record standard of review. In examining this claim, we apply the definitions of disability set out under the 1987 Workers' Compensation Act. See NMSA 1978, Secs. 52-1-25, -26 (Repl.Pamp.1987); see also NMSA 1978, Sec. 52-1-48 (Repl.Pamp.1987); Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.) (claim for workers' compensation benefits is controlled by legislative provisions in force at time cause of action accrued), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988).

Absent misapplication of law or lack of substantial evidence, the determination of the degree of disability is a factual issue to be decided by the judge in a workers' compensation proceeding, and a reviewing court will not substitute its judgment for that of the trial judge. Ideal Basic Indus., Inc. v. Evans, 91 N.M. 460, 461, 575 P.2d 1345, 1346 (1978); see also Barnett & Casbarian, Inc. v. Ortiz, 114 N.M. 322, 329, 838 P.2d 476, 483 (Ct.App.), cert. quashed (August 20, 1992); Schober v. Mountain Bell Tel., 96 N.M. 376, 382, 630 P.2d 1231, 1237 (Ct.App.), cert. quashed (July 13, 1981). In determining the degree of a worker's disability, the judge is not bound by expert testimony on this issue; instead, the judge may base his finding on lay testimony. See Grudzina v. New Mexico Youth Diagnostic & Dev. Ctr., 104 N.M. 576, 582, 725 P.2d 255, 261 (Ct.App.), cert. quashed, 104 N.M. 460, 722 P.2d 1182 (1986); cf. Lucero v. Los Alamos Constructors, Inc., 79 N.M. 789, 791, 450 P.2d 198, 200 (Ct.App.1969) (trial court's evaluation of worker's disability held to be within range of evidence shown in record); see also Kennecott Copper Corp. v. Chavez, 111 N.M. 366, 373, 805 P.2d 633, 640 (Ct.App.1990) (same).

In order to establish his claim of total disability, Claimant was required to prove that his disability prevents him "from engaging, for remuneration or profit, in any occupation for which he is or becomes fitted by age, training or experience." Section 52-1-25(A). "Partial disability" is defined as a condition where a worker "is unable to some percentage extent to perform any work for which he is fitted by age, education and training." Section 52-1-26(B). Under either of the applicable definitions of total or partial disability, the capacity of a worker to perform work is the primary test for determining the extent of his disability. See Quintana v. Trotz Constr. Co., 79 N.M. 109, 111, 440 P.2d 301, 303 (1968), overruled on other grounds by American Tank & Steel Corp. v. Thompson, 90 N.M. 513, 514, 565 P.2d 1030, 1031 (1977).

In Barnett & Casbarian, Inc., 114 N.M. at 327-28, 838 P.2d at 481-82, this Court held that the percentage of disability under the "capacity to perform work" test

is based on the reduction in the spectrum of work for which the injured worker is fitted. The reduction may be the result of the elimination of certain jobs that the worker can no longer perform (carpentry, heavy laborer, etc.) or a reduction in the worker's ability to perform certain tasks associated with the worker's current job (handling forms, etc.), which presumably reduces the worker's job opportunities. [Footnote omitted.]

Claimant contends that his capacity to perform work has been reduced to such an extent that he is permanently totally disabled as defined under the 1987 Act and that the City failed to present competent evidence supporting the finding that he was only 38% permanently partially disabled. He argues that because he was previously found to be totally disabled for purposes of receiving Social Security benefits and Public Employees Retirement Act benefits, the determination of the Judge in the present case that he was only 38% partially disabled under the Workers' Compensation Act was arbitrary, capricious, and contrary to the weight of the evidence. We are not persuaded by this argument. Evidence of disability awards received

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[116 N.M. 644] by a claimant under other statutory laws are generally inadmissible to establish the extent and degree of disability of the claimant in a workers' compensation action. See Bingham v. Dyersburg Fabrics Co., 567 S.W.2d 169, 171 (Tenn.1978); see also 2B Arthur Larson, The Law of Workmen's Compensation Sec. 79.71(b) (1993) ("Awards or records made in other proceedings, such as those involving social security claims, ... [or] disability pension claims ... ordinarily cannot be relied on to support or deny a workers' compensation claim.").

Claimant's other evidence concerning the extent of his disability rests primarily on the testimony of Barbara Jarvis, a vocational evaluator. Jarvis testified that, at the time of trial, Claimant was 57 years of age, his age constituted "a highly negative factor"; that Claimant's lack of education and functional illiteracy was a "very negative, very limiting factor"; that Claimant's prior work experience has been limited to unskilled, manual occupations; and that Claimant's education and experience, combined with his light-duty physical restrictions, limited his employment options. She also testified that "[w]hen you put all of that together you've got someone who basically is not going to be qualified for work," and that he was 100% disabled under the standards adopted by the 1987 Workers' Compensation Act.

The foregoing testimony, together with evidence of Claimant's work-related injury, was sufficient to establish a prima facie claim of total permanent disability. Sanchez v. Molycorp, Inc., 113 N.M. 375, 378, 826 P.2d 971...