Estrada v. NM State Land Office

• Court: New Mexico Court of Appeals
• Decided: May 7, 2010
• Docket: 30,121
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 DAN ESTRADA,

8 Worker-Appellee,

9 v. NO. 30,121

10 NEW MEXICO STATE LAND 11 OFFICE and STATE OF NEW 12 MEXICO RISK MANAGEMENT 13 DIVISION,

14 Employer/Insurer-Appellants.

15 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 16 Helen L. Stirling, Workers’ Compensation Judge

17 James Rawley 18 Albuquerque, NM

19 for Appellee

20 Paul L. Civerolo, L.L.P. 21 Paul L. Civerolo 22 Albuquerque, NM

23 for Appellants

24 MEMORANDUM OPINION

25 FRY, Chief Judge.

26 Employer/Insurer (Employer) appeals from the workers’ compensation

27 administration’s (WCA’s) compensation order, compensating Worker for his bilateral 1 hearing loss in both ears for 150 weeks. We issued a notice of proposed summary

2 disposition, proposing to affirm. Worker has responded to our notice with a

3 memorandum in support, and Employer has responded with memorandum in

4 opposition. We have considered the parties’ responses, and remain persuaded that the

5 WCA did not err. We therefore affirm.

6 Employer argues that the WCA erred by ruling that Worker was entitled to 150

7 weeks of loss of use benefits based on his partial loss of hearing in both ears under

8 NMSA 1978, Section 52-1-43(A)(43), (B) (2003) and NMSA 1978, Section 52-1-

9 42(B) (1990). [DS 7-8; MIO 3-7; RP 116] Employer argues that, instead, Worker

10 should have been entitled to forty weeks of loss of use benefits for his partial hearing

11 loss for each ear, for a total of eighty weeks. [Id.]

12 Interpretation of a statute is a question of law which an appellate court reviews

13 de novo. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124

14 N.M. 405, 951 P.2d 1066. Our goal in construing a statute is to give effect to

15 legislative intent. Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d

16 350, 354-55 (1996), aff’d in part, rev’d in part by 2000-NMSC-010, 128 N.M. 739,

17 998 P.2d 575. “[W]hen presented with a question of statutory construction, we begin

18 our analysis by examining the language utilized by the Legislature, as the text of the

19 statute is the primary indicator of legislative intent.” Bishop v. Evangelical Good

20 Samaritan Soc’y, 2009-NMSC-036, ¶ 11, 146 N.M. 473, 212 P.3d 361. “We also

21 consider the statutory subsection in reference to the statute as a whole and read the

22 several sections together so that all parts are given effect.” Id.

2 1 Section 52-1-43(A) contains a list of injuries “to specific body members”

2 (which resulted in the loss of the body member or the loss of use thereof) and a

3 corresponding number of weeks for which the worker is entitled to compensation

4 benefits. The relevant injuries listed in Subsection A appear as follows:

5 (42) total deafness in one ear ......................... 40 weeks

6 (43) total deafness in both ears ....................... 150 weeks

7 Section 52-1-43(A)(42), (43). The statute also provides for the partial, rather than

8 total loss “of the body members or physical functions listed in Subsection A.” Section

9 52-1-43(B). “For a partial loss . . .[,] the worker shall receive compensation computed

10 on the basis of the degree of such partial loss of use, payable for the number of weeks

11 applicable to total loss or loss of use of that body member or physical function.”

12 Section 52-1-43(B).

13 There is no dispute that Worker suffers partial deafness in both ears. The WCA

14 decided in favor of Worker’s reading of the statute that, under Subsection (B), Worker

15 is entitled to 150 weeks of benefits for his partial deafness in both ears, the physical

16 function described in Subsection (A)(43). [RP 115-16] The WCA rejected

17 Employer’s argument that Worker is entitled to 40 weeks for each ear for the partial

18 loss of deafness in each one. [Id.] The WCA reasoned that, if Employer were correct,

19 then Subsection (A)(43) would be the only subsection to which 52-1-43(B) does not

20 apply. [RP 116]

21 As we stated in our notice, the plain language of Subsection (B) applies to all

22 injuries listed in Subsection (A), and there is no express indication from the

3 1 Legislature that it intended to treat deafness in both ears differently than all the other

2 listed injuries. The Legislature’s inclusion of deafness in both ears among the listed

3 injuries contradicts Employer’s interpretation of the statute that the injury of deafness

4 in one ear should be used twice to calculate a partial loss of physical function. We

5 read the statute to give effect to all its parts, see Bishop, 2009-NMSC-036, ¶ 11, and

6 therefore, our notice proposed to construe the provision so that Subsection (B) applies

7 to all the injuries listed in Subsection (A).

8 In response to our notice, Employer does not directly address our proposed

9 analysis. Rather, Employer repeats its argument that seems to ignore the provisions

10 of Subsection (B), providing for recovery for partial loss of use. [MIO 3-7] Employer

11 continues to imply that Worker received a windfall from the loss of use rating and the

12 loss of use benefits payable for 150 weeks, because his impairment rating for both ears

13 was low, his daily activities were not impacted much from the injury, and he was able

14 to return to work at his pre-accident job. [MIO 2-4] Employer does not challenge the

15 factual basis for the loss of use rating on appeal, however, and focuses on the number

16 of weeks for which worker will be compensated. That determination is a matter of

17 statutory construction, and we are not persuaded by Employer’s reading of the statute.

18 Subsection (B) expressly states that the partial loss of use of the body members or the

19 physical functions listed in Subsection (A) are “payable for the number of weeks

20 applicable to total loss or loss of use of that body member or physical function.”

21 Section 52-1-43(B). We hold that Subsection (B) provides for partial deafness in both

22 ears payable for 150 weeks as required by Subsection (A)(43).

4 1 We affirm.

2 IT IS SO ORDERED.

3 4 CYNTHIA A. FRY, Chief Judge

5 WE CONCUR:

6 7 MICHAEL E. VIGIL, Judge

8 9 TIMOTHY L. GARCIA, Judge