Baca v. Complete Drywall Co.

2002 NMCA 002, 38 P.3d 181, 131 N.M. 413
CourtNew Mexico Court of Appeals
DecidedNovember 8, 2001
Docket21,527
StatusPublished
Cited by19 cases

This text of 2002 NMCA 002 (Baca v. Complete Drywall Co.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baca v. Complete Drywall Co., 2002 NMCA 002, 38 P.3d 181, 131 N.M. 413 (N.M. Ct. App. 2001).

Opinion

OPINION

FRY, Judge.

{1} In this appeal we address an issue of first impression: how long a worker can receive compensation benefits when one on-the-job injury gives rise to both (1) a disability resulting from an injury to a scheduled member pursuant to NMSA 1978, § 52-1-43 (1987), and (2) benefits paid for a permanent partial disability caused by an injury to a part of the body not covered by Section 52-1-43, see NMSA 1978, § 52-1-42 (1990). It is undisputed that all the disabilities are causally connected to the original on-the-job accidental injury. We hold that the number of weeks Worker received benefits for- the disabilities caused by the scheduled injuries cannot be deducted from the number of weeks he is entitled to receive benefits for his permanent partial disability. Accordingly, we reverse.

BACKGROUND

{2} The facts are not in dispute. Larry Baca (Worker) was employed as a drywaller for Complete Drywall Company. Complete DrywalPs workers’ compensation carrier is USF & G. We refer to Complete Drywall and USF & G collectively as Respondents.

{3} In November 1992, Worker fell from a scaffold and fractured his left knee joint. He underwent three separate surgeries for this injury. The leg below the hip is a scheduled member. Section 52-l-43(A)(30). Respondents paid 108.85 weeks of temporary total disability (TTD) benefits as a result of the injury to the left knee. Once Worker reached maximum medical improvement (MMI), he became entitled to an additional 150 weeks of benefits based on a 50% impairment of his left knee. See Section 52-1-43(D). The parties agree that these benefits have been fully paid.

{4} The injury to Worker’s left knee caused him to shift his weight to his right leg. Eventually, his right knee became symptomatic and required surgery. Respondents paid TTD benefits for the disability to the right knee for a total of 43.14 weeks. Following a formal hearing, the WCJ assessed a 20% loss of use of the right knee and awarded Worker scheduled injury benefits at the rate of 20% impairment for 150 weeks.

{5} Worker’s knee problems required him to use crutches and canes while walking. As a result, in December 1997 he began to develop problems with his hands, arms, and shoulders as a result. The shoulders are not scheduled members. Respondents initially denied compensation for these complaints. However, following a mediation, Respondents began paying TTD benefits retroactive to April 24, 1998, the date of Worker’s surgery on his torn right rotator cuff. When Respondents began paying these TTD benefits, they ceased paying the scheduled injury benefits for the right knee. Consequently, for the right knee, Worker has received a total of 78.71 weeks of scheduled injury benefits at the rate of 20%.

{6} Worker eventually had surgery on his left shoulder as well and reached MMI from that surgery on March 23, 1999. At that point, his treating physician assessed an impairment to Worker’s whole body. However, neither party was aware of the MMI date until December 1999. Thus, Respondents paid TTD benefits for the shoulder injuries from April 24, 1998, to December 20, 1999. On December 20,1999, Respondents stopped paying disability benefits. Worker filed a claim for further benefits.

{7} Prior to the formal hearing, the parties stipulated that Worker had received the following benefits:

TTD for the left knee 108.85 weeks
Scheduled injury benefits for the left knee 150 weeks
TTD for the right knee 43.14 weeks
Scheduled injury benefits for the right knee 78.71 weeks

Thus, Worker had received benefits for the disability caused by the scheduled injuries for a total of 380.7 weeks. The parties also stipulated that Worker’s percentage of permanent partial disability was 51%. This percentage was based on the disability to both shoulders and to the right knee.

{8} At the formal hearing, Worker argued that he had sustained four separate injuries: an injury to the left knee, an injury to the right knee, an injury to the left shoulder and an injury to the right shoulder. Worker argued that benefits had been fully paid for the left knee, except to the extent that Worker might become entitled to additional periods of TTD when it became necessary to completely replace that knee joint at some time in the future.

{9} Worker further argued that he first became entitled to benefits for a permanent partial disability (PPD) under Section 52-1-42 when he had the first shoulder surgery in April 1998. At that point, according to Worker, he became entitled to a maximum of 500 weeks of temporary total and permanent partial disability benefits for the whole body impairment. See Section 52-l-42(A)(2) (providing that a worker is entitled to receive permanent partial disability benefits for a maximum of 500 weeks if the permanent partial disability is less than 80%); Section 52-l-42(B) (providing that the 500 weeks includes the weeks for which TTD benefits were paid prior to a determination of permanent partial disability). However, Worker agreed that because the right knee was included in determining the 51% PPD percentage, Respondents should receive a week for week credit for all the weeks that benefits were paid for the right knee. In addition, Worker acknowledged that the TTD payments that began at the time of his first shoulder surgery were also included in the 500 weeks of maximum benefits. Thus, Worker agreed that Respondents had, in effect, already paid 249 out of the total 500 weeks of benefits. However, according to Worker’s calculations, he was still owed an additional 251 weeks of PPD benefits at the rate of 51%.

{10} Worker argued that Section 52-1-42, the permanent partial disability section, excluded benefits paid under Section 52-1 — 13, the scheduled injury section. Respondents took the position that scheduled injuries were simply a “type” or “subset” of the benefits payable for permanent partial disability. Respondents argued that because there was no second on-the-job injury in this case, there was only one period during which benefits were owed and that was the 500 week period that applied to benefits for a permanent partial disability of less than 80%. According to Respondents, the period to which Worker was entitled to benefits began on the date he fell and fractured his knee and ran for 500 weeks. Respondents recognized that NMSA 1978, § 52-1-56 (1989), allowed reopening of the case when the Worker’s condition changed, but argued that reopening did not “restart” the 500 week benefit period. Respondents also acknowledged that Section 52-l-43(D) provided a 700 week maximum period of benefits for a scheduled injury, but argued that this was only an authorization of additional TTD benefits for a scheduled injury.

{11} The WCJ agreed with Respondents’ reading of the statutes. He added up the weeks during which Worker had received benefits and subtracted that figure from the 500 weeks available for PPD. According to the WCJ’s calculations, Worker was only entitled to receive an additional 71.59 weeks of PPD benefits for the bilateral shoulder condition.

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Cite This Page — Counsel Stack

Bluebook (online)
2002 NMCA 002, 38 P.3d 181, 131 N.M. 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baca-v-complete-drywall-co-nmctapp-2001.