Ortiz v. BTU Block & Concrete Co.

925 P.2d 1, 122 N.M. 381
CourtNew Mexico Court of Appeals
DecidedAugust 21, 1996
Docket17047
StatusPublished
Cited by21 cases

This text of 925 P.2d 1 (Ortiz v. BTU Block & Concrete 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
Ortiz v. BTU Block & Concrete Co., 925 P.2d 1, 122 N.M. 381 (N.M. Ct. App. 1996).

Opinion

OPINION

HARTZ, Judge.

(1) Worker appeals from a compensation order entered by the Workers’ Compensation Administration. (WCA). She contends that the WCA failed to award her the full benefits to which she was entitled for temporary total disability. We agree. We reverse and remand for entry of an amended compensation order.

BACKGROUND

(2) Worker was employed by BTU Block & Concrete Company (Employer) as a truck driver from August 30, 1994 until November 22, 1994. Dining her employment she was repeatedly reprimanded for failing to obey instructions and for other deficiencies in her job performance. The last straw was an accident on November 18, 1994, when Worker improperly drove a truck and tractor down a ramp. She was fired on November 22. Prior to the firing Worker had made no complaint of injury received in the November 18 accident. But on November 22 she saw a chiropractor, Dr. John C. Christiansen, and subsequently sought workers’ compensation benefits.

(3) Mountain States Mutual Casualty Company (Insurer) and Employer have not contested that Worker suffered a compensable injury on November 18, 1994. Insurer paid benefits to January 12, 1995, when Dr. Christiansen released her to return to full duty work. It then resumed payments beginning March 6, 1995, when Dr. Barry Diskant examined her and found that she had not reached maximum medical improvement but could work with restrictions. The dispute on appeal concerns the amount of benefits to which Worker was entitled from January 12,1995 to March 6,1995.

(4) Because Worker did not reach maximum medical improvement until June 19, 1995, benefits during the period in question are governed by NMSA 1978, Section 52-1-25.1 (Repl.Pamp.1991) (effective Jan. 1, 1991). The pertinent provisions of that section state:

A. As used in the Workers’ Compensation Act, “temporary total disability” means the inability of the worker, by reason of accidental injury arising out of and in the course of his employment, to perform his duties prior to the date of his maximum medical improvement.
B. If, prior to the date of maximum medical improvement, an injured worker’s health care provider releases the worker to return to work and the employer offers work at the worker’s pre-injury wage, the worker is not entitled to temporary total disability benefits.
C. If, prior to the date of maximum medical improvement, an injured worker’s health care provider releases the worker to return to work and the employer offers work at less than the worker’s pre-injury wage, the worker is disabled and shall receive temporary total disability compensation benefits equal to sixty-six and two-thirds percent of the difference between the worker’s pre-injury wage and his post-injury wage.

(5) Employer and Insurer (collectively referred to as Respondents) argued before the WCA that Worker was not entitled to full temporary total disability benefits from January 12 through March 5, 1995 because (1) she had been released to work by Dr. Christiansen, (2) she was capable of modified duty with Employer, and (3) such modified duty would have been available to Worker had she not been terminated for her own misconduct. They proposed a conclusion of law that Worker was entitled to only two-thirds of the difference between her pre-injury wage and the wage she would have been paid for her modified duty. They contended that they owed Worker no money, however, because they had overpaid benefits from March 6 through June 19,1995.

(6) The WCA found that “[b]ut for Worker’s termination for cause from her employment with [Employer], Worker could have returned to work in the modified capacity,” and ruled that Worker was not entitled to any additional indemnity benefits.

DISCUSSION

(7) Section 52-1-25.1 recognizes only two exceptions to the requirement that total disability benefits be paid prior to the date of maximum medical improvement if the compensable injury prevents the worker from performing the worker’s pre-accident duties. First, if the worker is released to return to work and the employer offers work at the worker’s pre-injury wage, then no disability benefits are due. Section 52-l-25.1(B). Second, if the worker is released to work and the employer offers work at less than the worker’s pre-injury wage, the worker is entitled to only two-thirds of the difference between the worker’s pre-injury wage and the post-injury wage. Section 52-l-25.1(C).

(8) Respondents do not contend that either of these statutory exceptions applies here. An offer of employment is a prerequisite to the applicability of Sections 52-l-25.1(B) and (C). Yet, Employer did not offer Worker employment at any time after she was fired.

(9) Instead, Respondents contend that the Workers’ Compensation Act does not cover the specific situation that arose in this case, and therefore principles of “fundamental fairness” must control. For this proposition, they rely on Paternoster v. La Cuesta Cabinets, 101 N.M. 773, 776, 689 P.2d 289, 292 (Ct.App.1984). In Paternoster the issue before the court was what to do when an employer had overpaid benefits. No statutory provision addressed the issue. We wrote:

While we normally would look to the [Workers’ Compensation] Act for the rights, remedies, and procedures to be applied in any given case, we are provided no direction with regard to the availability of overpayment credit. However, where no guidance is given, “fundamental fairness” must be our guideline.

Id. at 776, 689 P.2d at 292 (citation omitted).

(10) We reject Respondents’ argument, because in our view the statute does cover the issue before us. It provides for payment of total disability benefits prior to maximum medical improvement except in two enumerated circumstances. Respondents do not contend that either of those circumstances is present here. Thus, the statute requires payment of full total disability benefits.

(11) We recognize that this Court has noted “the general acceptance of the proposition that one should not be permitted to benefit by refusing to take reasonable steps to help oneself.” Jeffrey v. Hays Plumbing & Heating, 118 N.M. 60, 64, 878 P.2d 1009, 1013 (Ct.App.1994). One might reason by analogy that a worker should not be entitled to greater benefits simply because she violated instructions so often that she was fired. But the above-quoted proposition is not a free-floating legal rule to be applied whenever a court wishes. It is only an aid in interpreting statutory language. The statute at issue in Jeffrey, Section 52-1-26, was ambiguous regarding whether reduction in benefits for partial disability would arise only when the worker was reemployed or whether the reduction would occur simply from an offer of reemployment. We resolved the ambiguity by reference to the generally accepted proposition.

(12) The case before us is reminiscent of Pena v. Phelps Dodge Chino Mines, 119 N.M.

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Bluebook (online)
925 P.2d 1, 122 N.M. 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-btu-block-concrete-co-nmctapp-1996.