Robertson v. Embroidery USA ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 LYNN ROBERTSON, 8 Worker-Appellee/Cross-Appellant, 9 v. NO. 30,924 10 EMBROIDERY USA and 11 STATE FARM WORKERS’ 12 COMPENSATION, 13 Employer/Insurer-Appellants/Cross-Appellees. 14 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 15 Terry S. Kramer, Workers’ Compensation Judge 16 James Rawley 17 Albuquerque, NM 18 for Appellee 19 David L. Skinner 20 Albuquerque, NM 21 for Appellants 22 MEMORANDUM OPINION 23 VIGIL, Judge. 24 Employer contends that the award of 434 weeks of 27% permanent partial 25 disability (PPD) benefits based on secondary mental impairment from March 4, 2008, 1 forward was error as a matter of law under NMSA 1978, Section 52-1-42(A)(4) 2 (1990), where the secondary mental impairment was the result of a physical injury to 3 the knee with a 150-week maximum period for payment of benefits under NMSA 4 1978, Section 52-1-43(A)(30) (2003). [Employer DS 2] Worker contends that the 5 Workers’ Compensation Judge’s (WCJ) decision to subtract sixty-six weeks from the 6 Worker’s five hundred-week period was error as these weeks were temporary total 7 disability (TTD) for Worker’s physical injury (forty-four weeks) and not for the 8 secondary mental impairment (twenty-two weeks). [Worker DS 2] 9 This Court’s calendar notice proposed to affirm on Employer’s issue on appeal 10 and proposed to reverse and remand on Worker’s issue on cross-appeal. [Ct. App. 11 File, CN1] Worker has filed a memorandum in support of the proposed disposition. 12 [Ct. App. File, MIS] Employer has not responded to the calendar notice and the time 13 for doing so has passed. 14 For the reasons set forth in this Court’s calendar notice, we affirm the WCJ on 15 the issue raised in Employer’s appeal. With regard to Worker’s cross-appeal, because 16 Worker’s PPD benefits should have been reduced by twenty-two rather than forty-four 17 weeks, we reverse and remand to the WCJ for a recalculation of Worker’s PPD 18 benefits. 19 IT IS SO ORDERED. 2 1 _________________________ 2 MICHAEL E. VIGIL, Judge 3 1 WE CONCUR: 2 _________________________________ 3 JAMES J. WECHSLER, Judge 4 _________________________________ 5 LINDA M. VANZI, Judge 4