Case v. Hanna Plumbing & Heating Co.

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 RICKY D. CASE,
3 Worker-Appellee/Cross-Appellant,
4 v. NO. 34,934
5 HANNA PLUMBING & HEATING CO., INC.
6 and MECHANICAL CONTRACTORS
7 ASSOCIATION OF NEW MEXICO, INC.
8 WORKERS’ COMPENSATION GROUP FUND,
9 Employer/Insurer-Appellants/Cross-Appellees.
10 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
11 Leonard J. Padilla, Workers’ Compensation Judge
12 Gerald A. Hanrahan
13 Albuquerque, NM
14 for Appellee
15 Maestas & Suggett, P.C.
16 Paul Maestas
17 Albuquerque, NM
18 for Appellants
19 MEMORANDUM OPINION
20 SUTIN, Judge.
1 {1} Employer includes Appellants Hanna Plumbing & Heating Co., Inc. and
2 Mechanical Contractors Association of New Mexico Inc. Workers’ Compensation
3 Group Fund. Worker is Cross-Appellant Ricky D. Case. In this Workers’
4 Compensation Act (the Act) appeal, Employer raises a first impression issue whether
5 the workers’ compensation judge’s (WCJ’s) awards of both permanent partial
6 disability (PPD) benefits, under NMSA 1978, Section 52-1-42 (1990, amended 2015),
7 and scheduled injury disability benefits, under NMSA 1978, Section 52-1-43 (2003),
8 improperly duplicated Worker’s benefits. Employer also asserts that the WCJ erred
9 in the start date for Worker’s PPD benefits. Worker cross-appeals, asserting error in
10 the assessments of his (1) total impairment rating, (2) impairment at a less than
11 additive value through the “combined values” methodology, and (3) tort damages in
12 assessing Employer’s reimbursement rights. For the reasons discussed later in this
13 opinion, we reverse and remand for further proceedings as stated in our conclusion at
14 the close of this opinion.
15 BACKGROUND
16 {2} Worker sustained serious injuries to both of his feet and ankles in a March 17,
17 2010 accident. He underwent a right subtalar joint fusion in February 2011 and a left
18 subtalar joint fusion in June 2011. He later developed low back, left hip, and right
19 knee pain and depression issues, all attributable to the accident. He reached maximum
2
1 medical improvement (MMI) on different dates: foot/ankle on June 13, 2012;
2 depression (secondary mental impairment) on February 7, 2013; and low back, left
3 hip, and right knee injuries on January 2, 2014. Worker’s claims were tried in
4 November 2014, and the WCJ filed his compensation order in July 2015.
5 {3} As to temporary total disability (TTD) benefits, the WCJ determined that
6 Worker was entitled to TTD benefits from his March 17, 2010 accident until he
7 reached MMI on January 2, 2014. There exists no issue on appeal regarding these
8 benefits. Employer was entitled to and appears to have received appropriate credit for
9 all TTD benefits paid.
10 {4} The WCJ determined that “Worker suffered a combined 24% whole person
11 impairment [(WPI)] as a result of his accident: 8% for left lower extremity; 8% for
12 right lower extremity; 3% for altered gait[;] and 10% for secondary mental.” The WCJ
13 also determined that “Worker did not suffer permanent physical impairment to his low
14 back, hips, and right knee.” The WCJ determined that Worker was entitled to 56%
15 PPD benefits for 500 weeks from January 2, 2014. As to Worker’s foot/ankle
16 scheduled injuries, the WCJ awarded benefits of 70% based on “70% loss of use for
17 his left foot/ankle injury[,]” and 70% based on “70% loss of use for his right
18 foot/ankle injury.”
3
1 {5} Worker filed a third-party tortfeasor action and settled for $1,850,000. The WCJ
2 valued Worker’s personal injury case at $3,300,000, resulting in Worker receiving
3 56% of the amount he needed to make him whole as determined by the WCJ.
4 DISCUSSION
5 A. Liberal Construction Issue
6 {6} Raised by Worker, the parties argue about the liberality with which this Court
7 should address issues involving benefits to workers under the Act. Worker asserts in
8 his answer brief that we must apply a rule of liberal construction to effectuate the
9 benevolent purposes of the Act.1 Employer contends that Worker’s “pre-1990 liberal
10 construction analysis . . . effectively invites this Court to ignore the clear
11 pronouncement of the New Mexico Legislature in revising the . . . Act in 1990.” See
12 NMSA 1978, § 52-5-1 (1990). Section 52-5-1 states a legislative “specific intent”
13 that benefit claims cases be decided on their merits and that the common
14 law rule of “liberal construction” based on the supposed “remedial” basis
15 of workers’ benefits legislation shall not apply in these cases. The
16 workers’ benefit system in New Mexico is based on a mutual
17 renunciation of common law rights and defenses by employers and
18 employees alike. Accordingly, the [L]egislature declares that the . . . Act
1
18 Worker relies on our Supreme Court’s cases of Mascarenas v. Kennedy, 1964-
19 NMSC-179, ¶¶ 3-4, 74 N.M. 665, 397 P.2d 312; Dupper v. Liberty Mutual Insurance
20 Co., 1987-NMSC-007, ¶ 5, 105 N.M. 503, 734 P.2d 743; Michaels v. Anglo American
21 Auto Auctions, Inc., 1994-NMSC-015, ¶ 13, 117 N.M. 91, 869 P.2d 279; and
22 Benavides v. Eastern New Mexico Medical Center, 2014-NMSC-037, ¶ 44, 338 P.3d
23 1265.
4
1 . . . [is] not remedial in any sense and [is] not to be given a broad liberal
2 construction in favor of the claimant or employee on the one hand, nor
3 are the rights and interests of the employer to be favored over those of
4 the employee on the other hand.
5 Id. Employer adds that Worker invites this Court to ignore this Court’s own
6 pronouncements2 calling for evenhandedness and fundamental fairness for both
7 Worker and Employer. Employer states that the notion of liberal construction “is a
8 thing of the past.”
9 {7} Our Supreme Court’s latest pronouncement along the line of liberal
10 construction is found in Rodriguez v. Brand West Dairy, 2016-NMSC-029, 378 P.3d
11 13. The Court stated the Act’s objective as: “(1) maximizing the limited recovery
12 available to injured workers, in order to keep them and their families at least
13 minimally financially secure; (2) minimizing costs to employers; and (3) ensuring a
14 quick and efficient system.” Id. ¶ 12 (internal quotation marks and citation omitted).
15 According to Rodriguez, “[t]he Act also instructs that it is not to be given a broad
16 liberal construction in favor of the claimant or employee on the one hand, nor are the
17 rights and interests of the employer to be favored over those of the employee on the
18 other hand.” Id. (internal quotation marks and citation omitted).
2
19 Garcia v. Mt. Taylor Millwork, Inc., 1989-NMCA-100, ¶ 11, 111 N.M. 17,
20 801 P.2d 87; Ramirez v. Dawson Production Partners, Inc., 2000-NMCA-011, ¶ 8,
21 128 N.M. 601, 995 P.2d 1043; and Gurule v. Dicaperl Minerals Corp., 2006-NMCA-
22 054, ¶ 9, 139 N.M. 521, 134 P.3d 808.
5
1 {8} Turning to language in Salazar v. Torres, 2007-NMSC-019, ¶ 10, 141 N.M.
2 559, 158 P.3d 449, the Court in Rodriguez also stated that “[Section 52-5-1] requires
3 us to balance equally the interests of the worker and the employer without showing
4 bias or favoritism toward either.” Rodriguez, 2016-NMSC-029, ¶ 12 (internal
5 quotation marks and citation omitted). Under Salazar, courts are to consider “policy
6 and philosophy that inform the legislative intent behind the Act[.]” 2007-NMSC-019,
7 ¶ 9. The policy is one of “evenhandedness.” Id. ¶¶ 10-11.
8 {9} We follow the Section 52-5-1 mandate that we are not to engage in a broad
9 liberal construction of the Act in favor of an employer or a worker. We will balance
10 their interests “without showing bias or favoritism toward either.” Rodriguez, 2016-
11 NMSC-029, ¶ 12 (internal quotation marks and citation omitted). And we will apply
12 “evenhandedness,” Salazar, 2007-NMSC-019, ¶¶ 10-11, as well as “fundamental
13 fairness to both the worker and the employer[.]” Gurule, 2006-NMCA-054, ¶ 9. Still,
14 “[w]e do not favor constructions of the Act that limit a worker’s ability to recover for
15 the full extent of his or her injuries. . . . [A] worker should be fairly compensated for
16 the full extent of his or her injuries.” Gutierrez v. Intel Corp., 2009-NMCA-106,
17 ¶¶ 15-16, 147 N.M. 267, 219 P.3d 524.
18 B. Employer’s Appeal: Double-Benefit Issue
6
1 {10} Employer faults the WCJ for awarding PPD benefits to Worker based on an
2 impairment calculation emanating from Worker’s foot/ankle injuries, while at the
3 same time awarding benefits for the foot/ankle disabilities as scheduled injuries.
4 According to Employer, this improperly resulted in a commingling of scheduled and
5 non-scheduled injuries that required Employer to pay Worker twice for the same
6 injuries in conflict with this Court’s decisions in Gutierrez and Baca v. Complete
7 Drywall Co., 2002-NMCA-002, 131 N.M. 413, 38 P.3d 181, each, according to
8 Employer, having determined that scheduled injuries are separate and distinct from
9 non-scheduled injuries. See Gutierrez, 2009-NMCA-106, ¶ 12; Baca, 2002-NMCA-
10 002, ¶ 21. The issue raised by Employer requires interpreting various provisions of the
11 Act. Any review therefore is de novo. DeWitt v. Rent-A-Center, Inc., 2009-NMSC-
12 032, ¶ 13, 146 N.M. 453, 212 P.3d 341; Baca, 2002-NMCA-002, ¶ 12. We first
13 discuss Baca and Gutierrez, and next the parties’ arguments, followed by our
14 conclusion to reverse and remand for further proceedings as stated in our conclusion
15 at the close of this opinion.
16 {11} Preliminarily, concepts of impairment, permanent impairment, PPD, and the
17 determination of PPD through calculation of impairment as modified by age,
18 education, and physical capacity, and the subject of compensation benefits for PPD,
19 are contained in NMSA 1978, Sections 52-1-24 (1990), 52-1-26 (1990, amended
7
1 2017), and Section 52-1-42. Benefits for specifically scheduled member injuries,
2 based on disability, including loss or loss of use of specific body members, are
3 contained in Section 52-1-43. Those scheduled injuries are compensated over a set
4 number of weeks, and the benefits for a partial loss of use are “computed on the basis
5 of the degree of such partial loss of use[.]” Section 52-1-43(A), (B). Section 52-1-
6 42(A) covers PPD “benefits not specifically provided for in Section 52-1-43[.]”
7 Section 52-1-42(B) states that “[PPD] benefits shall be reduced by the number of
8 weeks the worker actually receives [TTD] benefits” for the covered injuries.
9 Differently, for scheduled injuries, a worker is entitled to TTD payments up to MMI
10 and, in addition, is entitled to scheduled injury disability benefits related to the
11 particular scheduled injury. See § 52-1-43(D); Baca, 2002-NMCA-002, ¶ 23. Benefits
12 for scheduled injury disability under Section 52-1-43 are not part of the benefits for
13 non-scheduled injury disability under Section 52-1-42. See Baca, 2002-NMCA-002,
14 ¶ 24. “Benefits for disabilities caused by injuries to specific body members . . . and the
15 amount and duration of those benefits are set out in Section 52-1-43[.]” Baca, 2002-
16 NMCA-002, ¶ 23.
17 {12} In Baca, this Court addressed the question of “first impression [regarding] how
18 long a worker can receive compensation benefits when one on-the-job injury gives
19 rise to both (1) a disability resulting from an injury to a scheduled member[,] pursuant
8
1 to NMSA 1978, [Section] 52-1-43 (1987[, amended 2003]), and (2) benefits paid for
2 a [PPD] caused by an injury to a part of the body not covered by Section 52-1-43[.]”
3 Baca, 2002-NMCA-002, ¶ 1. Gutierrez addressed the same issue under slightly
4 different facts. 2009-NMCA-106, ¶¶ 1-3, 13.
5 {13} Baca involved “a disability to the left knee that subsequently caused a disability
6 to the right knee and . . . injuries to the shoulders.” 2002-NMCA-002, ¶ 26. The
7 worker received both TTD and scheduled injury benefits for the left and right knee
8 injuries. Id. ¶ 7. His bilateral shoulder injuries constituted non-scheduled injuries that
9 stemmed from his knee problems. Id. ¶¶ 5, 19. The worker received TTD benefits for
10 the shoulders. Id. ¶¶ 5-6. After surgery to the worker’s second shoulder, the treating
11 physician assessed impairment to the worker’s whole body. Id. ¶ 6. The WCJ appears
12 to have determined the worker’s percentage of PPD to be 51% based on the disability
13 to one or both shoulders and the right knee. Id. ¶¶ 7, 9.
14 {14} Baca draws on earlier law3 as still applicable, namely, that “[the] worker was
15 entitled to [PPD] benefits instead of scheduled injury benefits if the worker could
16 show that the injury to the scheduled member caused a separate and distinct injury to
17 a non-scheduled body part.” Id. ¶ 21. And Baca “agree[d] with [the w]orker that
3
17 See Jurado v. Levi Strauss & Co., 1995-NMCA-129, 120 N.M. 801, 907 P.2d
18 205; see also Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d
19 1210; Witcher v. Capitan Drilling Co., 1972-NMCA-145, 84 N.M. 369, 503 P.2d 652.
9
1 disabilities caused by scheduled injuries and disabilities caused by injuries to non-
2 scheduled members are separate and distinct concepts.” Id.
3 {15} Focusing on duration of benefits for the different types of disability, id. ¶¶ 22-
4 25, Baca states that “[n]othing in the language of either [Section 52-1-42 or Section
5 52-1-43] indicates that benefits under Section 52-1-43 are somehow part of the
6 benefits payable under Section 52-1-42. On the contrary, each section provides for the
7 duration of benefits for the type of disability covered by that section.” Id. ¶ 24.
8 {16} Further, under Baca “the scheduled injuries section and the [PPD] section each
9 address separately the extent to which TTD benefits are to be included in determining
10 the duration of the respective benefits.” Id. ¶ 25. Thus, the weeks of TTD received in
11 connection with a scheduled injury are not to be counted among the weeks that a
12 worker may receive PPD benefits.
13 {17} Gutierrez involved an injury in 1996 to the worker’s left foot and back. 2009-
14 NMCA-106, ¶ 4. Evidence showed “consistent foot, leg, and back pain, and his
15 progressive decline[.]” Id. He had several foot surgeries during 1998 through
16 November 2001. Id. ¶ 5. The worker developed low back and left leg pain and was
17 diagnosed with “degenerative disc disease and other spinal problems” in 2000 and
18 2001. Id. ¶ 6. In 2002, when the worker complained of left back, foot, and hip pain,
19 an MRI showed spondylolisthesis at L5-S1, and also “spondylolysis, a fracture in the
10
1 back part of the spine.” Id. ¶ 7. By November 2004, the worker still had pain radiating
2 down his leg, and continued low back pain and left leg nerve pain. Id. “By March
3 2005, it was hard for [him] to walk by the end of the afternoon.” Id. A physician
4 connected the worker’s back and leg pain to the 1996 accident. Id. ¶ 8. After back
5 surgery, the worker’s disc was stable, and the worker reached MMI in May 2006. Id.
6 The worker’s pain continued. Id. ¶ 9.
7 {18} The WCJ in Gutierrez combined durations of the foot and back injuries and
8 awarded 615 weeks of benefits, id. ¶ 10, noting that in Baca the Court “allowed the
9 worker to recover more than 500 weeks in benefits.” Gutierrez, 2009-NMCA-106,
10 ¶ 12. Gutierrez recognized that the worker’s injuries all occurred at the time of the
11 accident, whereas in Baca, the injuries at the time of the accident “later caused the
12 shoulder problems.” Gutierrez, 2009-NMCA-106, ¶ 13. Nevertheless, Gutierrez
13 focused on the “benefit period” for benefits, saw no reason to distinguish Baca, and
14 rejected the employer’s contention that “[the w]orker’s benefits period should be
15 limited to 500 weeks.” Gutierrez, 2009-NMCA-106, ¶¶ 14, 16.
16 {19} Livingston v. Environmental Earthscapes, 2013-NMCA-099, ¶¶ 1, 3, 311 P.3d
17 1196, involved the issue whether a worker could be paid PPD and scheduled injury
18 loss of use benefits when the payments for both would exceed the worker’s average
19 weekly wage. The critical question involved interpretation of various sections of the
11
1 Act, including NMSA 1978, Section 52-1-47.1(A) (1990), that limited benefits “so
2 that no worker receives more in total payments . . . by not working than by continuing
3 to work.” See Livingston, 2013-NMCA-099, ¶¶ 4-9. This Court noted that the worker
4 relied on Baca and Gutierrez to support his position that he could receive benefits in
5 excess of his average weekly wage. Livingston, 2013-NMCA-099, ¶ 10. We
6 determined that neither case supported the worker’s position, given that the issues in
7 Baca and Gutierrez were different from the issue in Livingston. Livingston, 2013-
8 NMCA-099, ¶ 10. We recognized that the issue was not whether the benefits were
9 separate and distinct, but instead whether the worker was entitled to “recover more in
10 benefits on a weekly basis than he was earning prior to the accident.” Id.
11 1. The Parties’ Arguments (Double-Benefit Issue)
12 {20} Employer sees the question left unanswered by Gutierrez and Baca to be “how
13 [are] an injured worker’s entitlement to [PPD] benefits and scheduled injury benefits
14 calculated/determined when the scheduled and non-scheduled injury benefits overlap
15 and exist contemporaneously[?]” Employer asserts that the separation and distinction
16 required by Baca and Gutierrez “give[s] rise to separate and distinct entitlements to
17 permanent disability benefits and corresponding time periods of benefit entitlement.”
18 Thus, Employer concludes, “[i]n using the foot/ankle and gait impairments . . . in
19 calculating . . . Worker’s PPD award, the WCJ has, in effect, awarded . . . Worker both
12
1 scheduled injury and PPD benefits for his foot/ankle injuries—something Baca and
2 Gutierrez say [is] improper.”
3 {21} Employer further argues that to duplicate the award in that manner “effectively
4 elevates the rights of . . . Worker above those of Employer/Insurer” in disregard of our
5 Legislature’s mandate that the rights of the worker and the employer are to be “subject
6 to the same standard of conduct and equivalent consequences for misconduct” under
7 Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d
8 1148, and Section 52-5-1. Employer points out that, in Delgado, our Supreme Court
9 noted that “the Act provides a scheme of compensation that affords profound benefits
10 to both workers and employers” and “represents the result of a bargain struck between
11 employers and employees[,]” and that “[t]his bargain is based on a mutual
12 renunciation of common law rights and defenses by employers and employees[.]”
13 2001-NMSC-034, ¶ 12 (internal quotation marks and citations omitted). And
14 Employer repeats Delgado’s emphasis that, under Section 52-5-1, courts are precluded
15 “from interpreting the Act in any way that would favor either the worker or the
16 employer.” Delgado, 2001-NMSC-034, ¶ 17.
17 {22} Worker devotes a major part of his answer brief to express his disdain with
18 respect to the insurance industry’s efforts for and the Legislature’s adoption of the
19 1990 amendments to the Act. He complains about the sweeping legislative changes
13
1 redefining permanent total disability and PPD in ways that permanent total disability
2 benefits were all but extinguished, leaving workers with “minimal dependence on
3 compensation awards.” In Worker’s words, the amendments “drastically ‘reformed’
4 the Act as a result of an alleged ‘Insurance Crisis’ ” and further “ignored” and
5 “disemboweled” the “benevolent purpose for enacting [workers’ compensation]
6 legislation” in order to overcome the mythological industry crisis.
7 {23} According to Worker, this ultimately resulted—with Worker’s apologies to
8 Shakespeare’s Hamlet—in “something . . . rotten in the State of New Mexico—two
9 and one-half decades of [workers’ compensation] insurers reaping profits from a
10 state[-]mandated insurance program while heaping the real costs onto the taxpayers[,]”
11 while “disabled workers became the sacrificial lamb for a vibrant economy.” The
12 ultimate point of Worker’s multi-page lesson that he characterizes as “[Workers’
13 Compensation] Economics 101” is that no “insurance crisis” ever actually existed and
14 “[t]he New Mexico Legislature had been played for a fool.”
15 {24} We leave Worker’s course in Economics 101 for the classrooms of our Supreme
16 Court and the Legislature. Getting to the merits of the issue, Worker asserts that no
17 duplication of benefits exists in this case. He argues that “[t]he scheduled injury
18 section was essentially enacted to provide limited compensation to an injured worker
19 who was not disabled but who nevertheless sustained a work-related permanent injury
14
1 for which some compensation was due.” He sees impairment as measured differently
2 from loss of use, because “impairment does not equal loss of use.” Based on his
3 position that non-scheduled injury and PPD can arise from a scheduled member injury
4 and disability, he argues that the basic holdings in Baca and Gutierrez amount to a
5 view “that scheduled injury benefits stand alone, separate and distinct from PPD
6 benefits [for WPI,] and if both [scheduled injury] and PPD benefits are warranted,
7 workers are to be awarded both sets of benefits independent of each other.” Worker
8 weaves language similar to that used by Employer into an argument opposite that of
9 Employer. According to Worker, separateness allows benefits for certain injuries to
10 be awarded as both PPD and scheduled member loss of use.
11 {25} Worker additionally sees the WCJ’s determination as correctly conforming to
12 a view that, in calculating a worker’s impairment as modified by age, education, and
13 physical capacity, Section 52-1-26(C) does not allow a WCJ to exclude any
14 impairments that may stem from injuries listed in Section 52-1-43. Section 52-1-26(C)
15 reads:
16 [PPD] shall be determined by calculating the worker’s impairment as
17 modified by his age, education and physical capacity, pursuant to
18 [NMSA 1978,] Sections 52-1-26.1 [to] 52-1-26.4 [(1990, as amended
19 through 2015)]; provided that, regardless of the actual calculation of
20 impairment as modified by the worker’s age, education and physical
21 capacity, the percentage of disability awarded shall not exceed ninety-
22 nine percent.
15
1 In that regard, Worker states that “impairment,” as defined in Section 52-1-24, “is not
2 defined as a worker’s whole[-]body impairment exclusive of any contribution from
3 scheduled members.” Section 52-1-24(A) reads:
4 “impairment” means an anatomical or functional abnormality existing
5 after the date of [MMI] as determined by a medically or scientifically
6 demonstrable finding and based upon the most recent edition of the
7 American [M]edical [A]ssociation’s guide to the evaluation of permanent
8 impairment or comparable publications of the American [M]edical
9 [A]ssociation. Impairment includes physical impairment, primary mental
10 impairment and secondary mental impairment[.]
11 {26} Worker argues that had the Legislature intended to define “impairment” as
12 Employer argues, that is, as excluding the contribution of a scheduled injury to partial
13 disability, it would have said so somewhere within Section 52-1-24 or Section 52-1-
14 26. Worker also points to NMSA 1978, Section 52-1-25(A)(2) (2003) that specifically
15 includes traumatic brain injuries in the definition of “permanent total disability” while
16 declaring that permanent total disability means “a brain injury . . . exclusive of the
17 contribution to the impairment rating arising from any other impairment to any other
18 body part, or any preexisting impairments of any kind[.]” Thus, Worker’s
19 interpretation of the benefits statutes is that the WCJ properly calculated Worker’s
20 WPI by including Worker’s foot/ankle injuries and gait impairments, while still
21 awarding scheduled injury benefits based on 70% loss of use of Worker’s ankles, and
16
1 “[a]ccordingly, there was no duplication of the [scheduled injury] award within the
2 PPD award.”
3 {27} Additionally, Worker points to Section 52-1-26.4, which covers physical
4 capacity modification within the PPD formula, looking at various classifications of
5 work in terms of “heavy, medium, light, and sedentary.” Worker points out that
6 nothing in Section 52-1-26.4 directs a WCJ to exclude from PPD consideration of any
7 injuries that come within the physical capacity determination in PPD analyses, and
8 thus “[b]y including factors such as walking, standing, arm controls[,] and leg
9 controls, it stands to reason that the Legislature specifically intended that a WCJ
10 consider injuries to arms, legs, and feet in assessing physical capacity modification.”
11 See § 52-1-26.4(C)(1), (2) (discussing lifting); § 52-1-26.4(C)(3) (discussing “arm or
12 leg controls”). Worker concludes that the WCJ did not err by considering in PPD the
13 limitations imposed by the injuries to Worker’s feet and ankles, as well as his knee,
14 hips, and low back.
15 {28} In response to Employer’s argument that the only impairment that was not
16 related to Worker’s feet/ankle injuries was for mental impairment and that such an
17 impairment does not justify a loss of physical capacity, Worker asserts that Dr.
18 Anthony Reeve gave Worker a 3% whole-person pain impairment rating due to
19 chronic pain that included his hip and back pain and because Worker “has a
17
1 significant gait pattern abnormality because of his pain.” Thus, according to Worker,
2 “the WCJ’s decision to award modifier benefits based upon a loss of physical capacity
3 from heavy to sedentary was due to Worker’s ‘significant gait pattern abnormality’
4 due to his 3% WPI due to chronic pain.”
5 {29} In sum, according to Worker, the WCJ properly assessed scheduled injury
6 benefits through a partial loss of use analysis and also properly assessed Worker’s
7 PPD benefits through the “statutory mandated factors[,]” without any double recovery
8 of any benefits.
9 {30} Employer discards Worker’s argument that Section 52-1-26(C) does not allow
10 a WCJ to exclude any impairments in performing a PPD calculation as meaningless
11 and irrelevant given this Court’s holdings in Gutierrez and Baca, as well as a logical
12 reading of that section as referencing only PPD benefits and not an impairment related
13 to a scheduled injury. Employer equally discards Worker’s argument that the WCJ did
14 not consider the 70% loss of use to Worker’s feet in awarding PPD benefits, stating
15 that a difference in the wording does not eliminate the fact of getting paid twice for
16 the same thing is a duplication process and is inconsistent with Gutierrez and Baca.
17 2. Summary Conclusions (Double-Benefit Issue)
18 a. TTD but No PPD
18
1 {31} We are not adequately made aware for what TTD benefits were paid, for what
2 period of time these benefits were paid for each injury, and as to specifically what
3 Employer was credited. Nor are we adequately made aware of the factual and
4 authoritative bases as to what the PPD for 500 weeks starting January 2, 2014 was
5 attributed, or why the 500 weeks was not reduced by TTD paid. And we are not
6 adequately made aware of why, after TTD was paid for Worker’s low back, hip, and
7 right knee injuries up to MMI on January 2, 2014, the WCJ determined that none of
8 these injuries (presumably disabilities) resulted to some percentage extent in PPD.
9 b. WPI Ratings
10 (1) The 8% Ratings
11 {32} We are given insufficient information as to how and why the WCJ determined
12 that Worker suffered a 24% WPI that consisted in part of 8% attributed for the left
13 lower extremity and 8% attributed for the right lower extremity. One cannot discern
14 what specific unscheduled parts of Worker’s body were partially permanently
15 impaired constituting WPI. The 8% determinations appear to refer to the two
16 foot/ankle scheduled injuries. The only unscheduled impairments to possibly be
17 included in these 8% ratings were the low back, hip, and right knee injuries, each of
18 which the WCJ determined did not give rise to WPI and PPD (although the right knee
19 injury would necessarily have been a scheduled injury).
19
1 {33} If, the WCJ intended the combined 8% / 8% WPI and PPD as additional
2 benefits unconnected with any specific separate unscheduled impairment, but instead
3 was connecting these benefits with the scheduled foot/ankle injuries, this combined
4 16% rating appears to run afoul of Section 52-1-42(A)’s language that “[f]or [PPD],
5 the workers’ compensation benefits not specifically provided for in Section 52-1-43
6 . . . shall be a percentage of the weekly benefit payable for total disability[.]” The
7 combined 16% rating might also run afoul of the separateness analyses in Gutierrez
8 and Baca, although the application of these cases to the present one involves a process
9 in search of a reasoned interpretation. We are not adequately made aware of the
10 analyses and the factual, legal, and authority bases underlying the combined 16%
11 rating.
12 (2) The 3% Rating
13 {34} The WCJ’s 3% rating attributed to gait is apparently attributable to the WCJ’s
14 view that it is an impairment constituting PPD as a specific, later developed injury
15 caused by Worker’s foot/ankle disabilities. See Baca, 2002-NMCA-002, ¶¶ 19, 21, 26-
16 27 (stating that “disabilities caused by scheduled injuries and disabilities caused by
17 injuries to non-scheduled members are separate and distinct concepts[,]” yet, in
18 reversing a WCJ order that erroneously subtracted scheduled injury benefit weeks
19 from PPD benefit weeks, the Court appears not to have disturbed a PPD rating for a
20
1 condition that developed from the scheduled knee injury). We are not adequately
2 made aware of the analyses and the factual, legal, and authority bases underlying this
3 3% rating.
4 (3) The 10% Rating
5 {35} Questions surrounding the WCJ’s 10% PPD rating for Worker’s secondary
6 mental impairment appear to be somewhat similar to those relating to the gait PPD,
7 insofar as the possibility of a PPD rating for a WPI stemming from a specific body
8 member may exist under the Act. Although, different from a gait condition, secondary
9 mental impairment is specifically addressed in Section 52-1-42(A)(4) as to the
10 duration of benefits for “partial [permanent] disability result[ing] from a secondary
11 mental impairment[.]” “Secondary mental impairment” is defined in Section 52-1-
12 24(C) as meaning “a mental illness resulting from a physical impairment[,]” as
13 opposed to “primary mental impairment” as defined in Section 52-1-24(B) to mean
14 “a mental illness arising from an accidental injury arising out of and in the course of
15 employment when the accidental injury involves no physical injury[.]” In the WCJ’s
16 compensation order, the extent of the WCJ’s focus on secondary mental impairment
17 was solely to find that Worker reached MMI for secondary mental impairment on
18 February 7, 2013 and suffered 10% WPI “for secondary mental,” and to conclude that
19 this impairment was caused by Worker’s foot/ankle injuries. We are not adequately
21
1 made aware of the analyses and the factual, legal, and authority bases underlying this
2 10% rating.
3 {36} Needless to say, the issue here tests the intended breadth and coverage of the
4 Gutierrez and Baca separate-and-distinct analyses and pronouncements in regard to
5 PPD and scheduled injury benefits and the intent underlying the statutory provisions
6 relating to those benefits. Neither Gutierrez nor Baca, nor relevant earlier decisions,
7 directly address the precise point of whether a worker can receive scheduled injury
8 benefits for loss of use of a scheduled body member and also PPD benefits stemming
9 from the same scheduled body member injuries.
10 {37} The WCJ and counsel do not provide this Court with a clear path to effective
11 review and a reasoned resolution of the double benefit issue. The WCJ’s WPI
12 determinations are not supported by clearly articulated, specific factual analyses nor
13 by case and statutory interpretation or application that has been sufficiently developed
14 in the record to allow an effective appellate review. The briefs do not adequately
15 assist. Although instructive, Gutierrez and Baca do not directly address and answer
16 the question here. The WCJ’s determinations are problematic and the matter is in need
17 of remand.
18 c. In Sum
22
1 {38} Given that we are not adequately made aware of the WCJ’s underlying bases
2 for his determinations, we reverse and remand on all double benefit issues for further
3 proceedings as stated in our conclusion at the close of this opinion.
4 C. Employer’s Appeal: PPD Start-Date Issue
5 {39} The WCJ recognized that Worker suffered problems with his low back, left hip,
6 and right knee and determined that Worker reached MMI as to those injuries on
7 January 2, 2014. The WCJ ultimately determined that Worker did not suffer
8 “permanent physical impairment” for those injures. Further, the WCJ determined that
9 Employer was entitled to credit for TTD benefits Employer paid during March 17,
10 2010 to January 2, 2014, at the same time determining that while Employer paid TTD
11 payments to Worker through August 1, 2013, Employer had not paid such benefits or
12 scheduled injury benefits since that date.
13 {40} The WCJ awarded PPD benefits “[f]rom January 2, 2014, and continuing for
14 500 weeks[.]” Employer contends that the WCJ compounded error “by restarting the
15 500 week PPD benefit period on January 2, 2014—the date . . . Worker’s low back,
16 left hip, and right knee injuries reached MMI.” Employer shows that Worker suffered
17 from low back, left hip, and depression (non-scheduled injuries) well before January
18 2, 2014, “[y]et, the WCJ did not give Employer . . . credit, as against the 500 week
19 PPD benefit time period, for the TTD benefits . . . Employer . . . paid to . . . Worker
23
1 between March 17, 2010 and January 2, 2014.” See § 52-1-42(B) (“If an injured
2 worker receives temporary disability benefits prior to an award of [PPD] benefits, the
3 maximum period for [PPD] benefits shall be reduced by the number of weeks the
4 worker actually receives temporary disability benefits.”). These are legal issues
5 requiring our de novo review. See Tom Growney Equip. Co. v. Jouett, 2005-NMSC-
6 015, ¶ 13, 137 N.M. 497, 113 P.3d 320 (“Appellate courts review matters of law de
7 novo.” (emphasis, internal quotation marks, and citation omitted)).
8 {41} Employer illustrates that within several months after March 17, 2010, Worker
9 was complaining of low back, left hip, and right knee injuries and that Worker also
10 later developed depression. Moreover, Employer adds, the WCJ determined that
11 Worker’s scheduled foot and ankle injuries reached MMI by June 13, 2012. Employer
12 points out that “Worker experienced both scheduled and non-scheduled injuries from
13 March 17, 2010 or shortly thereafter and that, at the very minimum, . . . Worker was
14 being paid TTD benefits after March 17, 2010 for both scheduled and non-scheduled
15 injuries.” Moreover, Employer indicates that because Worker’s foot and ankle injuries
16 reached MMI by June 13, 2012, “any TTD benefits paid to . . . Worker after June 13,
17 2012 were not paid to . . . Worker because of those scheduled injuries.”
18 {42} Employer sees this as similar to the issue addressed by this Court in Gutierrez,
19 2009-NMCA-106, ¶ 21, where this Court noted that, unlike in Baca, the worker’s
24
1 back injury developed at the time of the accident and not years later. As in Gutierrez,
2 Employer argues, “Worker’s scheduled and non-scheduled injuries developed
3 contemporaneously and shortly after . . . Worker’s March 17, 2010 accident.” As a
4 result, Employer contends, “Worker was paid TTD benefits for both scheduled and
5 non-scheduled injury benefits.” Employer concludes that “the 500 week PPD benefit
6 period provided by . . . [Section] 52-1-42(A)(2) . . . was triggered by . . . Worker’s
7 March 17, 2010 accident and not the date . . . Worker’s last work related injuries
8 reached MMI.” Employer therefore argues that “the WCJ improperly restarted the 500
9 week PPD benefit period on January 2, 2014 after all of . . . Worker’s work related
10 injuries [had] reached MMI despite the fact that . . . Worker’s entitlement to TTD
11 benefits prior to January 2, 2014 was related, at least in part, to his non-scheduled
12 injuries.”
13 {43} Worker responds that the WCJ’s decision to restart the 500 week period on
14 January 2, 2014 was supported by Baca, 2002-NMCA-002, ¶ 1, which held that “the
15 number of weeks [the w]orker received benefits for the disabilities caused by the
16 scheduled injuries cannot be deducted from the number of weeks he is entitled to
17 receive benefits for his [PPD].”
18 {44} Worker reiterates that he was injured on March 17, 2010; that “[t]he WCJ found
19 that Worker’s foot and ankle injuries reached MMI on June 13, 2012”; and that the
25
1 WCJ found that “Worker’s low back, left hip and right knee injuries reached MMI on
2 January 2, 2014.” Injuries to the foot and ankle, Worker shows, are scheduled injuries
3 listed in Section 52-1-43(A)(31) and (32), and an injury to the right knee is listed in
4 Section 52-1-43(A)(30). Accordingly, Worker argues, he received TTD benefits for
5 scheduled injuries from March 17, 2010 through January 2, 2014, and the award of
6 500 weeks of PPD benefits commencing on January 2, 2014 was fully supported by
7 Baca, which stated that “[w]e see no reason to include the weeks of TTD received in
8 connection with a scheduled injury in calculating the weeks that a worker may receive
9 [PPD] benefits.” 2002-NMCA-002, ¶ 25.
10 {45} The WCJ determined that Worker was owed TTD benefits for various injuries
11 from March 17, 2010 to January 2, 2014, with Employer entitled to a credit for TTD
12 paid during that time period. The WCJ did not award scheduled injury or PPD benefits
13 relating to the right knee. Yet the WCJ awarded PPD benefits “[f]rom January 2,
14 2014[] and continuing for 500 weeks[.]” Employer did not provide requested findings
15 of fact or conclusions of law in regard to the start of the 500 week PPD benefit period.
16 We have difficulty understanding Worker’s emphasis on the right knee as a scheduled
17 injury with a January 2, 2014 MMI date, as well as the WCJ’s apparent agreement
18 with Worker’s position. We do not see any helpful findings, conclusions, or
19 authorities set out by the WCJ in regard to the issues surrounding the start or restart
26
1 date, including, if pertinent, payment (or non-payment) and credit for TTD benefits,
2 MMI dates, and scheduled and non-scheduled injuries that had or would have effect
3 on the start or restart date.
4 {46} Presently, we are not in a position to provide effective review. We see this issue
5 as one requiring reversal and remand for further proceedings as stated in the
6 conclusion at the close of this opinion.
7 D. Worker’s Cross-Appeal: Assessment/Valuation Error
8 {47} Worker’s cross-appeal presents a number of issues involving assessments or
9 ratings of Worker’s impairments. In regard to those issues, Worker repeats his
10 position taken in regard to Employer’s appeal that we are to liberally construe the Act.
11 Employer has the same response as that expressed in its appeal. We continue to stand
12 by our previous analysis. See supra ¶¶ 6-9.
13 1. Whole-Person Impairment
14 {48} Worker sees incongruity created by the impairment report of Dr. Reeve, who
15 was the physician evaluating Worker’s impairment. Worker asserts that the report
16 indicates he was “unable to work in any reasonable occupation,” yet under the Act he
17 cannot qualify for permanent total disability and must live with a lesser right to PPD
18 under Section 52-1-26(B). Notwithstanding that incongruity, Worker assures us that,
19 as the law and process presently stand, impairment and disability are to be measured
27
1 under Section 52-1-24(A) by reference to the American Medical Association’s Guides
2 to the Evaluation of Permanent Impairment. See § 52-1-24(A) (defining “impairment”
3 by reference to “the most recent edition of the American [M]edical [A]ssociation’s
4 [G]uide[s] to the [E]valuation of [P]ermanent [I]mpairment or comparable
5 publications of the American [M]edical [A]ssociation”). And further, Worker
6 acknowledges that working within the flexibility of the Guides, when there exists
7 conflicting evidence as to impairment, the WCJ is to determine “the degree of a
8 worker’s impairment and disability[.]” Madrid v. St. Joseph Hosp., 1996-NMSC-064,
9 ¶ 19, 122 N.M. 524, 928 P.2d 250; see id. (stating that Section 52-1-24(A) “does
10 allow for an element of discretion” and that “the [American Medical Association]
11 Guide . . . was not intended to establish a rigid formula to be followed in determining
12 the percentage of a worker’s impairment”).
13 {49} Worker clarifies that his appellate point is limited to a disagreement with Dr.
14 Reeve’s assessment of his 26% WPI rating. While Worker acknowledges that Dr.
15 Reeve accurately assessed a 30% lower extremity impairment (LEI) for each of the
16 two foot/ankle conditions, Worker contends that it was error to convert each
17 impairment rating to only an 8% WPI rating. Worker argues that Dr. Reeve erred
18 mathematically in applying the conversion factor in Table 16-10 of the Guides by not
19 converting each 30% rating to a 12% WPI as directed in the table. According to
28
1 Worker, the WCJ erred by failing to correct Dr. Reeve’s mathematical error. Worker
2 sees the issue as one of law, requiring de novo review.
3 {50} In a more detailed analysis, Worker contends that Dr. Reeve’s ultimate
4 combined WPI, which Worker sets out as 8+8+3+10 (8% LEI, 8% LEI, 3% altered
5 gait, 10% depression), should have been 12+12+3+10—the former resulting in a
6 mathematically incorrect “combined” 26% WPI under the “Combined Values Chart”
7 in the Guides instead of the mathematically accurate 33% WPI impairment. According
8 to Worker (as we understand it), the specific mistake that Dr. Reeve made was in the
9 combined values process when he multiplied “the 30% LEI by 70% and then by 40%
10 to arrive at only an 8% WPI[,]” instead of multiplying 30% LEI by 40% to arrive at
11 a 12% WPI resulting in “two 12% WPI ratings [that] ‘combine’ into a 23% WPI [.12
12 + (.12)(.88) = .23].” “Had Dr. Reeve accurately converted his 30% LEI to 12% WPI,”
13 by correctly using the Guides, Worker states, “the final combined rating would have
14 been a 33% WPI[,]” thereby substantially increasing Worker’s benefits.
15 {51} Employer does not engage in a mathematical discussion to contest Worker’s
16 calculations. Employer insists that we must engage in whole record review. Employer
17 contends that “Dr. Reeve’s impairment report provides substantial evidence that
18 supports the WCJ’s determination in regard to this issue[.]” Employer argues that the
19 WCJ made his decision regarding WPI conversion for each foot/ankle injury after
29
1 reviewing and considering conflicting evidence. Employer asserts that “a careful
2 review of . . . Dr. Reeve’s deposition . . ., when considered as a whole, demonstrate[s]
3 that Dr. Reeve’s testimony was tentative, hesitant and conflicting.” Employer adds
4 that “it appeared as if Dr. Reeve was uncomfortable with Worker’s counsel’s approach
5 to and interpretation of the pertinent provisions of the . . . Guides.”
6 {52} To illustrate, Employer states that Dr. Reeve was asked the following questions
7 and gave the following answers.
8 Q. So a 30% [LEI], wouldn’t that be a 12% [WPI]? [(Objection
9 omitted.)]
10 A. I think I have to look at the table. We use the table to do the
11 conversion. I don’t do it like—if the table shows—what does the table
12 show?
13 ....
14 Q. But I just want to verify from the record, from the Table 16-
15 2, what the impairment is to the lower extremity of 30%, and that
16 converts to 12% [WPI]. [(Objection omitted.)]
17 A. That would be that. If we’re doing that, we’re incorporating
18 the entire lower extremity, not just the ankle and the foot. Agreed?
19 Q. No. For that condition, that’s what the rating is.
20 A. Right, but what I’m saying is that would include the hip and
21 the knee then, because now it’s the whole lower extremity converts to 8.
22 But if you’re doing it by the ankle, then this is correct.
23 In other words, . . . if you consider this an ankle to lower extremity
24 whole body, then that’ll be an 8%, and then if we’re going to break out
30
1 the knee and hip again, that would be incorporated in the total 30%.
2 Agreed?
3 ....
4 Q. And in this case you used the ankle and the foot injuries that
5 you impaired to come up with an 8% [WPI] for each lower extremity?
6 A. Yes.
7 ....
8 Q. Well, 12% [WPI] rating as a result of each subtalar
9 arthrodesis? [(Objection omitted.)]
10 ....
11 A. Well, I think the point I’m trying to make is this is a left and
12 a right subtalar arthrodesis, which is ankle and foot, so the rating that it
13 should have been given would have been—I guess it would depend on
14 what we started with. If, indeed, we started with a 30% foot and ankle
15 rating, right, then the whole body would have been 8%.
16 Employer concludes from the foregoing that “Dr. Reeve was confused and his
17 testimony was conflicting and equivocal[.]”
18 {53} Worker’s reply brief accuses Employer of “repetitious and misleading
19 ‘substantial evidence’ arguments” and that a de novo standard of review “should be
20 applied when reviewing a WCJ’s interpretation of statutory requirements.” Worker
21 repeats his stance and accuses Employer of “completely mislead[ing] this Court by
22 arguing that this is an issue of substantial evidence[] and that substantial evidence
23 supports the WCJ’s finding.” Worker states:
31
1 This is simple mathematics: 30% x 40% = 12%! Simple math provides
2 precise sums. It is preposterous to argue that substantial evidence
3 supports an incorrect mathematical answer. Had Dr. Reeve added 2 + 2
4 and found 3; and had the WCJ accepted his sum, the Answer Brief would
5 likewise argue that substantial evidence supports the conclusion that 2
6 + 2 = 3.
7 2. Lumbar Spine/Low Back
8 {54} As a separate assessment issue, Worker asserts that the WCJ erred as a matter
9 of law by failing to find a permanent impairment of his low back, based on what
10 Worker contends are “Dr. Reeve’s verifiable findings of injury and Table 17-4 of the
11 Guides.”
12 {55} In his cross-appeal brief in chief, Worker alleges that Dr. Reeve testified that
13 Worker’s “complaint of low back pain radiating down from his left buttock to the heel
14 of his foot was consistent with a ‘[disk] protrusion at L5-S1’ and that Worker had
15 ‘verifiable findings’ of a lumbar injury.” Worker adds that Dr. Reeve’s testimony was
16 that “a 7% WPI was an appropriate rating for this injury pursuant to Class 1 within
17 Table 17-4[.]” Worker states that, on cross-examination, “Dr. Reeve admitted that he
18 did not assign a lumbar impairment at the time of his evaluation.” Thus Worker asserts
19 that “the WCJ erred as a matter of law by failing to find a permanent impairment of
20 his lumbar spine, based upon Dr. Reeve’s verifiable findings of injury and Table 17-4
21 of the Guides.”
32
1 {56} Worker considerably expands his brief in chief argument in his reply brief. He
2 asserts that the following were undisputed facts. According to Worker, “Dr. Reeve’s
3 physical examination of Worker’s lumbar spine revealed tenderness over the lower
4 lumbar area, pain to palpation, and mild restricted range of motion[,]” and Worker was
5 referred for physical therapy. Worker states that an MRI showed a “small [disk]
6 protrusion at L5-S1[.]” Dr. Reeve testified that Worker “has a verifiable finding”
7 related to his lumbar injury and assessed Worker as suffering from “chronic low back
8 pain[,]” and when asked to assess impairment for Worker’s lumbar spine, Dr. Reeve
9 testified that Worker “would fall into the Class I, intervertebral [disk] herniation at a
10 single level with medically documented findings with or without surgery. So the
11 default level would be seven.” Dr. Reeve also testified that he would be comfortable
12 with assigning a 7% WPI rating due to the lumbar injury.
13 {57} Asserting that he suffered a lumbar disk protrusion or herniation, Worker notes
14 that Table 17-4 of the Guides, in its “Lumbar Spine Regional Grid,” indicates that
15 with an “intervertebral disk herniation, Class 1 provides [a] WPI rating[] in the range
16 of 5% to 9%, with 7% being the default rating[] for a single level herniation with
17 medically documented findings; with or without surgery.” He cites Stedman’s Medical
18 Dictionary 790 (26th ed.), as defining “herniation” as “formation of a protrusion[,]”
33
1 and he notes that Dr. Reeve agreed that the terms “herniation” and “protrusion” are
2 equivalent.
3 {58} For support Employer looks to other testimony of Dr. Reeve from which
4 Employer argues that Dr. Reeve’s impairment report on this subject and the WCJ’s
5 determination that Worker’s lumbar injury was not a permanent impairment were
6 supported by the evidence. As mentioned earlier, Employer insists on a whole record
7 review. Employer suggests that Worker presents a “substantial evidence motif without
8 calling it substantial evidence” and states that “the fallacy” of Worker’s position is
9 that “it focuses only on the evidence that supports [his] position and not all of the
10 pertinent evidence.” Employer cautions that the reviewing court is to canvass all the
11 evidence bearing on a finding or decision, favorable and unfavorable, in order to
12 determine if there is substantial evidence to support the result, not substitute its
13 judgment for that of the administrative agency, but instead view all evidence in the
14 light most favorable to the agency’s decision. Thus, Employer reminds us we are to
15 affirm the WCJ’s decision if, after taking the entire record into consideration, “there
16 is evidence for a reasonable mind to accept as adequate to support the conclusion
17 reached.” Leonard, 2007-NMCA-128, ¶ 10 (internal quotation marks and citation
18 omitted).
34
1 {59} Employer notes that Dr. Reeve diagnosed chronic low back pain for Worker’s
2 low back complaints, “not . . . a herniated [disk] or, importantly, a radiculopathy for
3 purposes of the impairment evaluation.” Employer highlights “additional pertinent
4 aspects” of Dr. Reeve’s deposition testimony.
5 Q. Okay. You stated that the MRI revealed a herniated [disk]
6 at L5-S1?
7 A. Yes. He doesn’t actually have a herniated [disk]. He has a
8 [disk] protrusion at L5-S1. It’s not a clear herniated [disk], as I recall. I
9 think he has a verifiable finding, yes.
10 ....
11 Q. You did not even diagnose a chronic low-back pain with
12 nonverifiable radicular complaints?
13 A. No.
14 ....
15 Q. So at the time of the impairment rating, and you haven’t
16 done any additional work since then, your opinion is—or you have not
17 assigned an impairment rating to [Worker’s] low back?
18 A. Yes, that’s correct.
19 ....
20 Q. We can engage in a lot of speculation and conjecture about
21 what might be going on with [Worker], but your best medical judgment
22 at the time you did the impairment rating here today is no impairment for
23 the low back?
24 A. Yes.
35
1 Q. And that’s based upon a reasonable degree of medical
2 probability? [(Objection omitted.)]
3 A. Yes.
4 {60} Based on Dr. Reeve’s impairment report and testimony, Employer asserts that
5 substantial evidence exists supporting the WCJ’s determination that “Worker did not
6 suffer a permanent impairment to his low back as a result of his March 17, 2010
7 accident.”
8 {61} In his reply brief, Worker accuses Employer of turning to whole record review
9 in an “attempt[] to distort reality by arguing that Dr. Reeve’s testimony was equivocal
10 and therefore Worker’s L5-S1 [disk] herniation (and its impairment value) does not
11 exist.” Worker nevertheless requests this Court, if it is to apply whole record review,
12 to “find” the following facts about the low back impairment:
13 (1) Worker has a documented [disk] protrusion at L5-S1;
14 (2) A [disk] protrusion is an anatomical abnormality;
15 (3) Worker has chronic low back pain and verifiable findings relating
16 to the [disk] protrusion;
17 (4) Dr. Reeve omitted a lumbar assessment during his initial
18 impairment assessment;
19 (5) Asked to assess impairment for the lumbar injury during his
20 testimony, Dr. Reeve readily agreed that a 7% WPI would be
21 appropriate;
36
1 (6) A 7% WPI is in the range of WPIs for a “disk herniation . . . at a
2 single level . . . with medically documented findings” pursuant to
3 Class 1 on Table 17-4 of the Lumbar Spine Regional Grid;
4 (7) Dr. Reeve testified during cross-examination that he would not
5 agree that “[Worker] merits a zero percent impairment for his low
6 back”; . . .
7 (8) Dr. Reeve’s answer, in response to very confusing questions
8 posed during cross-examination, was that he had not assigned a
9 lumbar impairment at the time of his initial impairment
10 assessment[.]
11 {62} Thus, Worker argues, even under whole record review, this Court should
12 conclude that the WCJ erred by finding that Worker did not suffer a permanent
13 impairment to his low back, because “[t]he only logical conclusion from the evidence
14 presented is that Worker was entitled to an impairment rating for his lumbar injury.”
15 3. Hips
16 {63} For his final assessment issue, Worker contends that “the WCJ erred as a matter
17 of law by failing to find a permanent impairment to his hips, based upon Dr. Reeve’s
18 and the [independent medical examination] physician’s verifiable findings of injury
19 and Table 16-4 of the Guides.” Worker asserts that Dr. Reeve’s testimony showed that
20 Worker suffers from bilateral hip pain, diagnosed as “trochanteric bursitis.” He states
21 that the evidence of bilateral hip pain and the bilateral trochanteric bursitis was
22 undisputed. And he points out that Table 16-4 of the Guides provides an impairment
23 rating for “chronic trochanteric bursitis with documented, chronically abnormal
37
1 gait[,]” with a default rating of “7% LEI, which converts to a 3% WPI [7% x 40% =
2 3%].”
3 {64} Employer asserts that Worker’s challenge of the WCJ’s determination involves
4 an issue of substantial evidence and that Worker “focuses mostly on the evidence that
5 would support the result [he] seeks[, thereby] essentially requesting that this Court sit
6 as the trial judge and reweigh the evidence to resolve this issue in favor of . . .
7 Worker.”
8 {65} Employer again turns to Dr. Reeve’s impairment report and testimony.
9 Employer shows that, in his impairment report, Dr. Reeve diagnosed “chronic bilateral
10 hip pain[,]” not the “bursitis” referenced by Worker. Further, Employer highlights that
11 Dr. Reeve testified as follows:
12 Q. Now, in terms of the hip, you also, on January 2, 2014,
13 diagnosed bilateral hip impairment?
14 A. Yes.
15 ....
16 Q. Without a bursitis there’s no basis to assign an impairment
17 rating to [Worker’s] left hip?
18 A. Yes.
19 Q. And you agree with that?
20 A. Yes.
38
1 Q. And that’s based upon a reasonable degree of medical
2 probability? [(Objection omitted.)]
3 A. Yes.
4 ....
5 Q. I understand. All I’m trying to establish, Dr. Reeve, is if we
6 look at Table 16-4, and the diagnosis is left hip pain, if the diagnosis is
7 left hip pain then he fits into a class zero, and that means a zero percent
8 impairment.
9 A. Well, if you just go with a diagnosis of hip pain, but if you
10 go with the diagnosis of bursitis, he would have some form of—he could
11 have a formal impairment rating.
12 Q. And that’s based upon a reasonable degree of medical
13 probability? [(Objection omitted.)]
14 A. Yes.
15 Q. And you have the same answer for the right hip?
16 A. Yes.
17 Q. Based upon a reasonable degree of medical probability?
18 A. Yes.
19 Employer asserts that “[u]nquestionably, Dr. Reeve’s testimony about whether . . .
20 Worker suffered an impairment to his hips as a result of his March 17, 2010 accident
21 was conflicting and, at times, confusing and was largely dependent on what
22 assumptions Dr. Reeve was asked to make.” While Dr. Reeve’s testimony may have
23 also supported the conclusion Worker seeks, Employer adds, “as with the other
39
1 substantial evidence questions raised by this appeal, this Court’s function is not to
2 reweigh the evidence even if it believes that the WCJ could have reached a different
3 result.” Employer concludes that the evidence “demonstrates that the WCJ’s
4 determination that . . . Worker did not suffer an impairment to his hips as a result of
5 his March 17, 2010 accident is supported by substantial evidence and should not be
6 disturbed.”
7 {66} Worker, of course, responds with what he asserts is undisputed evidence that
8 he suffers from bilateral hip pain as a result of the work accident and that his bilateral
9 hip injuries were diagnosed as bilateral “trochanteric bursitis.” Worker then returns
10 to the Guides as providing an impairment rating for “chronic trochanteric bursitis with
11 documented, chronically abnormal gait.” Worker argues it was undisputed that he has
12 a documented, chronically abnormal gait. Worker asserts that “[t]he default rating for
13 this diagnosed hip condition is a 7% LEI, which converts to a 3% WPI [7% x 40% =
14 3%]” and that “Dr. Reeve agreed that two 3% WPI ratings were appropriate for
15 Worker’s bilateral trochanteric bursitis at the hips.”
16 {67} With this evidence, Worker asserts that Employer once “again attempts to
17 distort reality by arguing that Dr. Reeve’s testimony was ‘conflicting’ and
18 ‘confusing’; and therefore Worker’s bilateral trochanteric bursitis (and impairment
19 values) does not exist.” Worker accuses Employer of “attempt[ing] to manufacture
40
1 ‘conflicting’ evidence by arguing that if Worker’s hip injuries were not diagnosed as
2 trochanteric bursitis then there would be no ratable impairments.”
3 {68} Thus, Worker asserts that “[t]he WCJ erred as a matter of law by failing to find
4 permanent impairments [under Section 52-1-24(A)] to both of Worker’s hips, based
5 upon the verifiable findings of injury made by Dr. Reeve and the [independent
6 medical examination] physician[], and Table 16-4 of the Guides.”
7 {69} He contends that “the whole record demonstrates that [he] was not correctly
8 assigned a 12% WPI for each foot/ankle injury; and was not properly assigned
9 impairments for his lumbar and hip injuries.” And he concludes that
10 [a] correct interpretation of [Section] 52-1-24(A) and the . . . Guides
11 require findings that Worker has a 12% WPI due to his right LEI; a 12%
12 WPI due to his left LEI; a 10% WPI for depression; a 7% WPI for his
13 lumbar [disk] protrusion with medically documented findings; a 3% WPI
14 due to trochanteric bursitis in his right hip; a 3% WPI due to trochanteric
15 bursitis in his left hip; and a 3% WPI due to chronic pain.
16 4. Summary of Assessment and Valuation Issues
17 {70} Worker raises issues in need of considerably more detailed and transparent
18 analysis, explanation, and authority contained in findings of fact and conclusions of
19 law or in an explanatory decision before we attempt to resolve the issues through
20 effective appellate review. We therefore reverse and remand to the WCJ for further
21 proceedings as stated in our conclusion at the close of this opinion.
22 E. Worker’s Cross-Appeal: Combined Values/Additive Value Issues
41
1 {71} Worker describes the “combined values” method in the Guides for combining
2 multiple impairment ratings. He then takes us through a complicated arithmetic
3 analysis, which, he obviously assumes, this Court will easily and undoubtedly follow,
4 and which we set out here verbatim.
5 Worker’s WPI impairment ratings “add” up to at least a 50% WPI,
6 to wit: 12+12=24; +10=34; +7=41; +3=44; +3=47; +3=50. Pursuant to
7 the “Combined Values Chart” . . . of the Guides, these very same
8 impairment ratings “combine” into a 42% WPI, to wit: 12+12(88%)=23;
9 +10(77%)=31; +7(69%)=36; +3(64%)=38%; +3(62%)=40%;
10 +3(60%)=42.
11 At $666.02 per week, a 1% change in PPD benefits will reduce
12 benefits by $6.66 per week, or by $3,330.10 over 500 weeks. An 8% loss
13 in the WPI rating is $26,640.80 less in PPD benefits over 500 weeks.
14 {72} Stated slightly differently, Worker explains that “the seven impairment values
15 that [he] is requesting on appeal ‘add’ up to 50% and ‘combine’ to 42%. This 8%
16 difference would increase [Worker’s PPD] benefits by $53.28/week ($666.02/week
17 x 8%).” Relying on a 2000 article in the Journal of the American Medical Association
18 entitled Recommendations to Guide Revision of the Guides to the Evaluation of
19 Permanent Impairment, Worker also sets out “numerous criticisms” of the Guides in
20 devaluing disability assessments. Stating that it is a matter of first impression, Worker
21 argues from the article that the “combined values” method utilized by the Guides
22 “almost always results in a ‘less than additive’ value whenever the sum of two
23 impairments of at least 5% exceeds 15%[] and only results in the ‘additive’ value
42
1 whenever one impairment is small or the sum is about 15% or less.” Worker
2 concludes that “[t]his ‘combined values’ or ‘less than additive’ method of
3 compensating a disabled worker with multiple impairments was not specifically
4 approved by the Legislature, is fundamentally unfair to disabled workers with multiple
5 impairments, and denies workers with substantial and multiple impairments equal
6 protection under the . . . Act.”
7 {73} Not ending on that note, Worker points to “impairment” in Section 52-1-24 as
8 being referenced throughout “singularly” and further points to NMSA 1978, Section
9 12-2A-5(A) (1997)’s provision that “[u]se of the singular number includes the plural,
10 and use of the plural number includes the singular[,]” in arguing that he “should be
11 compensated for PPD at a rating equal to his impairments, rather than the less than
12 additive value, plus modifier values.” Setting out examples related to disability
13 benefits set out in Section 52-1-25, NMSA 1978, Section 52-1-41(B) (1999, amended
14 2015), and Section 52-1-42(A)(2) to show his point, and adding arguments on the
15 topic, Worker concludes that “[l]ogic and reason dictate that the Legislature would
16 likewise have intended to fully compensate disabled workers with multiple and
17 substantial impairment ratings the full additive value of their impairments, rather than
18 a less than additive value.”
43
1 {74} And as Worker “finally” asserts under this point, an interpretation of Sections
2 52-1-24 and -26 that would create two classes of individuals, namely: “(1) those with
3 single and/or minor impairment ratings who receive full value for PPD benefits; and
4 (2) those with multiple impairment ratings who receive ‘less than additive value’ for
5 PPD benefits[,] would violate the [E]qual [P]rotection [C]lause of the New Mexico
6 Constitution, Article II, [Section] 18[,]” because no rational basis exists “for
7 discriminating against workers who have multiple impairments and have a greater
8 need for full benefits.”
9 {75} Since it was undisputed that Worker was totally and physically unable to return
10 to work in his chosen career as a plumber, because he does not qualify for permanent
11 total disability benefits due to the severely restrictive definitions in Section 52-1-25,
12 and because he is not entitled to any vocational assistance or rehabilitation due to the
13 repeal of those benefits in 1990, Worker concludes that:
14 The plain language of [Section] 52-1-24 and [Section] 52-1-26[,] the
15 legislative intent to provide greater disability benefits to [w]orker[s] with
16 severe, multiple and/or higher impairment ratings[,] and the spirit of the
17 Act[] mandate an award of PPD benefits to Worker based upon the full
18 extent of his injuries and his impairments. The WCJ erred by
19 ‘combining’ Worker’s impairments at a less than additive value.
20 {76} Employer responds that Worker wants this Court to “interject itself as a super
21 legislature and redefine” the definition of “impairment” in Section 52-1-24(A). In that
22 regard, Employer notes that Worker “acknowledges that this issue is a matter of first
44
1 impression ‘and [is] without prior case law guidance’ ” and fails to supply authorities
2 that support “his argument that this Court should summarily disband the ‘Combined
3 Values’ methodology outlined in the . . . Guides in addressing workers’ compensation
4 cases in New Mexico contrary to what Section 52-1-24(A) provides.” Employer notes
5 Worker’s lack of authority supporting his position, stating that Worker’s argument “is
6 supported mostly by Worker’s self-interest and inclination that the Legislature surely
7 did not intend to adopt the ‘Combined Values’ approach.” Employer sets out several
8 arguments as to why Worker’s arguments fail, including Worker’s equal protection
9 violation arguments.
10 {77} We view the issues here as policy-based, with answers not apparent from the
11 statutes. For effective review, we reverse and remand for further proceedings as stated
12 in our conclusion at the close of this opinion.
13 F. Tort Damages Value/Employer’s Reimbursement Right
14 {78} Worker attacks the WCJ’s $3,300,000 assessment of the value of Worker’s
15 case, as well as the WCJ’s finding that follows from that assessment that Worker
16 received 56% ($1.85 million) of the amount needed to make Worker whole. Worker
17 asserts that the WCJ erred as a matter of law by not apportioning Worker’s tort
18 recovery into any elements, as required in Gutierrez v. City of Albuquerque, 1998-
19 NMSC-027, ¶ 14, 125 N.M. 643, 964 P.2d 807. Rather, in Worker’s words, the WCJ
45
1 “simply knocked $1 million off of Worker’s valuation without any analysis other than
2 Worker’s tort attorney remained his advocate.”
3 {79} Worker faults the WCJ for not accepting what Worker contends is “the
4 reasonable and conservative valuation of Worker’s tort damages [of $4,300,000] that
5 were made by Worker’s experts, his tort attorney, economist and certified life
6 planner[,]” a valuation that, Worker asserts, Employer did not rebut or offer any
7 contrary expert opinion. Worker asserts that Employer offered no evidence as to the
8 value of Worker’s tort damages and did not dispute his showing of the specific
9 elements comprising the value of those damages, presented as follows:
10 Elements of Damage Value % of
11 claim
12 1. Payment Medical Expenses $ 122,000 2.8%
13 2. Past Lost Earnings $ 208,000 4.8%
14 3. Past Loss of Household Services $ 15,000 0.3%
15 4. Future Loss of Household Services $ 202,000 4.7%
16 5. Future Medical Expenses $ 221,000 5.1%
17 6. Future Lost Earnings $1,907,000 44.4%
18 7. Pain and Suffering $ 750,000 17.4%
19 8. Loss of Enjoyment of Life $ 650,000 15.2%
20 9. Loss of Consortium ([wife’s] case) $ 225,000 5.2%
46
1 Total Case Value $4,300,000 100%
2 Gutierrez held, among other things, that:
3 The employer is entitled to only that part of the tort recovery
4 which represents monies paid that duplicate compensation it has paid or
5 is liable to pay. The judge must start from the presumption that the
6 employer is entitled to full reimbursement, because, as we said in
7 Montoya, if the worker has dealt with the third party in good faith and at
8 arm’s length, then the net amount paid presumptively would be the
9 amount by which the employer’s liability is reduced. However, a worker
10 who has resolved [his] third-party suit can no longer be said, as a matter
11 of law, to have been made financially whole. A worker must be given the
12 opportunity to show, and has the burden to prove, that in fact the tort
13 recovery was fairly and reasonably calculated in good faith to
14 compensate for injuries not covered by the benefits the employer has
15 paid. If a worker does so, the [WCJ] must apportion a worker’s tort
16 recovery into its reasonable elements, and compare those with a
17 breakdown of the compensation benefits paid by employer. An employer
18 has an interest in those elements of the worker’s tort recovery which are
19 also covered by worker[s’] compensation, but no interest in those
20 elements of a worker’s tort recovery that were calculated in good faith
21 to remedy losses not covered.
22 1998-NMSC-027, ¶ 14 (internal quotation marks and citations omitted). Worker
23 contends that these damages calculations were based on uncontradicted medical
24 evidence that the WCJ should have accepted under the “uncontradicted medical
25 evidence rule.” See Hernandez v. Mead Foods, Inc., 1986-NMCA-020, ¶¶ 13-14, 104
26 N.M. 67, 716 P.2d 645 (establishing that uncontradicted medical evidence must be
27 accepted under certain circumstances). Worker asserts he produced uncontradicted
28 evidence of the value of his tort damages pursuant to NMSA 1978, Section 52-5-17
47
1 (1990), and Gutierrez, none of which was rebutted or shown to be unworthy of belief,
2 equivocal, suspicious, or subject to any reasonable doubt as to veracity. Based on
3 various explanations, including various damages amounts and descriptions of
4 Worker’s condition and economic status, Worker concludes that, with no findings of
5 fact, it was absurd that the WCJ could “summarily discount the valuation of such tort
6 damages by attorneys who for decades have routinely obtained such damages for their
7 clients.”
8 {80} Employer argues that Worker seeks nothing more than to have this Court
9 reweigh the evidence in a substantial evidence challenge. Employer points out that
10 Worker’s evidence was “supported mostly by the ‘expert’ testimony of the attorney
11 who represented . . . Worker in his tort litigation[,]” testimony to which Employer
12 states it had objected. In addition, Employer points to evidence it presented through
13 its examinations of Worker, his wife, and his tort attorney regarding “the impact the
14 . . . accident had on . . . Worker[,]” and points to the fact that the WCJ heard testimony
15 from Worker about his pain and suffering, loss of enjoyment of life, and overall
16 impact of his injuries. In some detail, Employer’s answer brief explained:
17 Putting aside Worker’s almost exclusive reliance on the testimony of his
18 tort attorney, the record reflects that the WCJ’s decision about the value
19 of the Worker’s tort claim is supported by substantial evidence which
20 Worker’s [brief in chief] seems to acknowledge. Worker’s valuation of
21 his lost earnings, household services and medical expenses, past and
22 future, were fully supported by the facts and expert opinions of the
48
1 economist and certified life planner. These damages totaled $2.675
2 million. If the WCJ accepted these amounts, that left only $625,000 for
3 past and future pain and suffering, past and future loss of enjoyment of
4 life and loss of consortium for Worker’s spouse. This amount is less than
5 39% of the conservative valuations made by Worker[] by Worker[’s] tort
6 attorneys. In other words, assuming the WCJ’s[] $3.3 million valuation
7 of . . . Worker’s tort damages, Worker concedes that an amount of
8 $625,000 would remain for the hedonic portion of . . . Worker’s tort
9 damages—something that is most certainly reasonable.
10 (Internal quotation marks and citation omitted.)
11 {81} The WCJ’s valuation lacks the analytic detail and transparency as to the factors
12 that support his valuation. Without that, the WCJ’s valuation appears as little more
13 than guesswork and is inadequate for effective review. We reverse and remand for
14 further proceedings as stated in our conclusion at the close of this opinion.
15 CONCLUSION
16 {82} We reverse and remand on all issues with instructions to the WCJ to assess his
17 previous determinations and rulings based upon the analysis set forth in this opinion.
18 Thereafter, the WCJ should provide detailed, reasoned analyses, explanations,
19 transparency, and authorities as to each disposition on each issue to be contained
20 either in amended or additional findings of fact and conclusions of law or in a
21 supportive and fully explanatory decision, or both, as best suits the WCJ to produce
22 final determinations that are amenable to effective appellate review.
23 {83} IT IS SO ORDERED.
49
1 __________________________________
2 JONATHAN B. SUTIN, Judge
3 WE CONCUR:
4 _______________________________
5 TIMOTHY L. GARCIA, Judge
6 STEPHEN G. FRENCH, Judge (specially concurring).
50
1 FRENCH, Judge (specially concurring).
2 {84} I concur with the majority’s position and offer additional thoughts I believe will
3 assist the WCJ and counsel on remand.
4 {85} Neither Gutierrez, Baca, nor relevant earlier decisions, directly address the
5 precise question of whether a worker can receive scheduled injury benefits for loss of
6 use and PPD benefits, in addition to loss of use, for the same scheduled body member
7 injury. Although instructive, Gutierrez and Baca do not directly address and answer
8 that question here. It is my view that compensation benefits for PPD pursuant to
9 Section 52-1-42 (non-scheduled injury) may never be based upon an accidental injury
10 to the same specific body member separately covered by Section 52-1-43 (scheduled
11 injury).
12 {86} This is so because the statute providing for compensation benefits for PPD,
13 Section 52-1-42, states that benefits may be available for injuries “not specifically
14 provided for in Section 52-1-43[.]” As this Court in Baca concluded, “disabilities
15 caused by scheduled injuries and disabilities caused by injuries to non-scheduled
16 members are separate and distinct concepts.” 2002-NMCA-002, ¶ 21; see id. (holding
17 that “a worker was entitled to [PPD] benefits instead of scheduled injury benefits if
18 the worker could show that the injury to the scheduled member caused a separate and
19 distinct injury to a non-scheduled body part” (emphasis added)). Thus, the touchstone
51
1 for receiving both PPD benefits, in addition to scheduled injury benefits, is the
2 requirement of a separate and distinct injury to a non-scheduled body part different
3 from that of a separate and distinct scheduled member injury. Here, it appears that the
4 WCJ compensated the same scheduled injuries, Worker’s left foot/ankle injury and
5 Worker’s right foot/ankle injury, with both PPD benefits and scheduled injury
6 benefits. See § 52-1-43(A)(31). In my view, this is improper.
7 _____________________________
8 STEPHEN G. FRENCH, Judge
52