Smith v. Arizona Public Service Co.

2003 NMCA 097, 75 P.3d 418, 134 N.M. 202
CourtNew Mexico Court of Appeals
DecidedJune 17, 2003
Docket22,500
StatusPublished
Cited by16 cases

This text of 2003 NMCA 097 (Smith v. Arizona Public Service 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
Smith v. Arizona Public Service Co., 2003 NMCA 097, 75 P.3d 418, 134 N.M. 202 (N.M. Ct. App. 2003).

Opinion

OPINION

KENNEDY, Judge.

{1} Arizona Public Service Company (Employer) appeals from the Workers’ Compensation Administration’s award of workers’ compensation benefits to Henry Smith (Worker) for an injury sustained to his ears in a work-related accident. Employer argues that compensation for a scheduled injury awarded pursuant to NMSA 1978, § 52-1-43(B) (1989), must exclude the percentage of impairment to Worker’s ears that existed prior to the work-related accident. Worker urges us to apply the enhanced disability concept to his scheduled injury award, compensating him for the total loss of his hearing, as it is a natural and direct consequence of the work-related injury. We hold that the enhanced disability concept (preexisting injury rule) applied in Edmiston v. City of Hobbs, 1997-NMCA-085, 123 N.M. 654, 944 P.2d 883 and Leo v. Cornucopia Restaurant, 118 N.M. 354, 881 P.2d 714 (Ct.App.1994) is an integral part of the Workers’ Compensation Act (the Act) and applies to the scheduled injuries section under the Act where there is no temporary or permanent disability. In short, the present extent of impairment covered as a scheduled injury is to be compensated without factoring out previous causes of impairment. We therefore affirm the Workers’ Compensation Judge (WCJ). Employer additionally argues that if this Court were to reverse the WCJ’s award, Worker would not be entitled to recover attorney fees. Because we affirm the award, we do not reach this issue.

FACTUAL AND PROCEDURAL BACKGROUND

{2} On February 9, 1998, Worker suffered an injury to both ears when a six-inch pipe exploded at Employer’s Four Corners Power Plant. Due to this accident, Worker is now required to wear hearing aids to compensate for his profound hearing loss. Prior to the filing of Worker’s complaint, Employer began paying Worker indemnity for only -5% loss of use of both ears, the percentage which it determined was attributable to the February 9 accident.

{3} After a trial on the merits, the WCJ made the following findings of fact:

22. As a direct and proximate result of the accident of February 9, 1998, to a reasonable medical probability, Worker suffered an injury to both ears. The nature of the injury is profound hearing loss. The accident of February 9, 1998 aggravated, exacerbated and combined with pre-existing hearing loss.
26. Worker suffered a loss of use to a member appearing in Section 52-1-43(B) of the Workers’ Compensation Act. The loss of use is of 59% to both ears.

In addition, the WCJ found that Worker was never temporarily or permanently disabled, as defined under the Act, as a result of the accident.

{4} Although the WCJ found that Worker had experienced hearing loss before the accident, he did not specify what percentage of the combined hearing loss was attributable to Worker’s preexisting condition. The evidence presented to the WCJ established that 5 to 10% of Worker’s 59% hearing loss was attributable to the accident. Employer does not dispute the total percentage of hearing loss suffered by Worker. Worker was awarded compensation for the total 59% loss of use to both ears.

STANDARD OF REVIEW

{5} Resolution of this issue involves the interpretation of several provisions of the Act. This Court reviews the interpretation of a statute de novo. Baca v. Complete Drywall Co., 2002-NMCA-002, ¶ 12, 131 N.M. 413, 38 P.3d 181. When construing a statute, our primary goal “is to give effect to the intent of the legislature.” Id. ¶ 13, 38 P.3d 181 (internal quotation marks and citation omitted). We look first to the plain meaning of the statute’s words, and we construe the provisions of the Act together to produce a harmonious whole. Id. Having ascertained the meaning of the statute, we review the whole record to determine whether the WCJ’s findings and award are supported by substantial evidence. Tollman v. ABF (Arkansas Best Freight), 108 N.M. 124, 126-27, 767 P.2d 363, 365-66 (Ct.App.1988).

DISCUSSION

Employer’s Argument as to Why the Enhanced Disability Concept is Inapplicable to Scheduled Injuries Under the Act.

{6} Employer contends that Worker is entitled to only the 5% loss of use or impairment to his ears directly caused by the work-related accident because the injury is a scheduled loss injury under Section 52-1-43 of the Act. This section provides for benefits for “disability arising from an accidental injury to specific body members.” Section 52-1-43(A). Employer acknowledges that in disability cases, a worker may be entitled to enhanced disability compensation when a worker’s preexisting condition combines with the impairment from work-related accidental injury to reduce a worker’s physical capacity. However, Employer argues that because Worker’s injury is an impairment falling under the Act’s scheduled injury provision and not a disability, enhanced disability is not applicable to Worker’s combined impairment.

{7} Relying on NMSA 1978, § 52-1-28 (1987), which states that “[c]laims for workers’ compensation shall be allowed only ... when the disability is a natural and direct result of the accident,” Employer argues that because there is no ongoing disability, the entire hearing loss Worker now exhibits was not a natural and direct result of the accident, and Worker should therefore not be compensated for the portion of the hearing loss attributable to the preexisting condition. Employer further argues that to compensate him for the preexisting condition would not be fair to Employer because it would unjustly compensate Worker for an injury that Employer had no part in causing.

{8} Additionally, Employer contends that the analysis used in disability cases does not apply when the result is loss of use to a scheduled member under Section 52-l-43(A). Rather, Employer argues that cases like Edmiston and Leo are limited to -’situations where the combined 'effect of the preexisting condition and the work-related injury results in a disability which affects a worker’s ability to perform on the job. See Twin Mountain Rock v. Ramirez, 117 N.M. 367, 369, 871 P.2d 1373, 1375 (Ct.App.1994) (distinguishing impairment, which is ‘[a]n infirmity or defect that limits the physical functioning of the worker’s body[,]’ and disability, which ‘is a limitation on the worker’s capacity to perform work’). Accordingly, Employer reasons that because the combined hearing loss had no impact on Worker’s ability to work, requiring it to pay for a preexisting loss of hearing would not be compensation, but rather would produce a windfall to Worker and be unfair to Employer, and this is not the result the legislature intended when it enacted the scheduled injury section of the Act.

The Scheduled Injury Provision of the Act

{9} The Act awards compensation based on certain formulas applied to certain types of injuries. See Torres v. Plastech Corp., 1997-NMSC-053, ¶ 14, 124 N.M. 197, 947 P.2d 154.

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Cite This Page — Counsel Stack

Bluebook (online)
2003 NMCA 097, 75 P.3d 418, 134 N.M. 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-arizona-public-service-co-nmctapp-2003.