JOJOLA V. FRESENIUS MED. CLINIC, 2010-NMCA-101,
149 N.M. 51, 243 P.3d 755
ROBERTA JOJOLA, Worker-Appellant,
v.
FRESENIUS MEDICAL CLINIC, ALBUQUERQUE ACUTES, and CNA,
Employer/Insurer-Appellees.
COURT OF APPEALS OF NEW MEXICO
2010-NMCA-101, 149 N.M. 51, 243 P.3d 755
September 21, 2010, Filed
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION,
Gregory D. Griego, Workers’ Compensation Judge
Released for Publication November 16,
2010.
David S. Proffit, Albuquerque, NM, for
Appellant.
Allen, Shepherd, Lewis, Syra &
Chapman, P.A., Kimberly A. Syra, Amy M. Cardwell, Albuquerque, NM, for
Appellees.
TIMOTHY L. GARCIA, Judge. WE CONCUR: CELIA
FOY CASTILLO, Judge, LINDA M. VANZI, Judge.
AUTHOR: TIMOTHY L. GARCIA.
{1} The question
before us is whether the workers’ compensation judge (WCJ) erred in not
combining a work-related impairment of Worker’s left leg with a preexisting
impairment in Worker’s right leg to award scheduled benefits for the right leg
impairment. We conclude there was no error and affirm the WCJ’s decision.
{2} Worker is a
licensed practical nurse who injured her left knee at work when a reverse
osmosis machine fell on her. The injury left Worker with a permanent physical
impairment of fifty percent in her left knee. Worker suffered a permanent loss
of use of her left knee as a direct and proximate result of the work accident.
Worker’s left knee injury was to a member listed on the scheduled list in NMSA
1978, Section
52-1-43(A) (2003) of the Workers’ Compensation Act (WCA), and the
WCJ awarded loss of use benefits for Worker’s left knee impairment. Worker also
had a preexisting sixteen percent lower extremity permanent impairment in her
right knee. The WCJ determined that Worker was not permanently disabled as a
result of the accident and that the preexisting right knee injury did not
combine with her left knee injury to result in an additional disability. Worker
appealed the WCJ decision.
{3} Worker argues on
appeal that the WCJ should have combined the work-related impairment in her
left knee with the preexisting impairment in her right knee to issue a
scheduled injury loss award for her right knee. Whether Worker can recover
additional benefits under this theory is a question of law that we review de
novo.
See Meyers v. W. Auto,
2002-NMCA-089, ¶ 13,
132 N.M. 675,
54 P.3d
79 (applying a de novo standard of review when interpreting a statute).
{4} In order to recover
compensation for a scheduled injury, a worker has to demonstrate that a
specific body member was injured as a result of an accidental injury.
See §
52-1-43(A) (allowing compensation for “disability resulting from an accidental
injury to specific body members”);
Smith v. Ariz. Pub. Serv. Co.,
2003-NMCA-097, ¶ 9,
134 N.M. 202,
75 P.3d 418 (explaining that a scheduled
injury is “the total or partial loss or loss of use of a specific body member
listed in Section 52-1-43(A)” (alteration omitted) (internal quotation marks
omitted)). If a work-related injury combines with a preexisting injury to
further affect the scheduled member and create impairment, a worker is entitled
to a scheduled benefit for the total impairment.
Smith,
2003-NMCA-097,
¶¶ 13, 16 (affirming a scheduled benefit award for the total impairment amount
when the worker had a preexisting loss of hearing condition that was worsened
by a work-related accident to result in a fifty-nine percent hearing loss). The
total impairment loss must be a direct and natural consequence of the work-related
injury.
Id. ¶ 18.
{5} In this case,
Worker concedes that her preexisting right knee impairment was not a
consequence of the work-related accident, and there was no evidence that her
preexisting right knee impairment became worse as a result of the accident.
Worker’s two doctors had not evaluated her right knee impairment since the
work-related injury to her left knee and, therefore, could not testify that her
right knee impairment had increased as a consequence of her left knee injury.
Since Worker’s preexisting right knee impairment was not a consequence of the
work-related accident, she cannot be compensated for a scheduled injury under
Section 52-1-43 for her right knee.
{6} Under our workers’
compensation statutory scheme, “when a preexisting condition combines with a
work-related injury to cause a disability, an employee is entitled to benefits
commensurate with the total disability sustained[.]”
Edmiston v. City of
Hobbs,
1997-NMCA-085, ¶¶ 8, 24,
123 N.M. 654,
944 P.2d 883 (holding that the
worker’s preexisting cancer combined with the work-related spinal injury to
result in permanent disability). This principle was also applied in
Reynolds
and
Leo where the injured workers were compensated when a
preexisting condition combined with an impairment sustained in a work-related
accident to result in overall permanent partial disability.
Reynolds v.
Ruidoso Racing Ass’n, Inc.,
69 N.M. 248, 258,
365 P.2d 671, 678 (1961)
(holding that the worker was permanently partially disabled when the worker’s preexisting
osteoporosis combined with the work-related spinal compression fracture
injury);
Leo v. Cornucopia Rest.,
118 N.M. 354, 359-60,
881 P.2d 714,
719-20 (Ct. App. 1994) (holding that the worker was permanently partially
disabled when the worker’s preexisting lung and heart conditions combined with
the worker’s work-related back injury);
see NMSA 1978, §
52-1-26 (1990).
Worker did not seek below and does not argue on appeal that the WCJ should have
awarded permanent partial disability for her preexisting right knee condition
combined with her work-related left knee injury. She is seeking only a
scheduled benefit award for a right knee injury that was preexisting.
Therefore, we do not review whether her preexisting right knee impairment
combined with her left knee injury to result in a permanent partial disability.
{7} Worker is asking
this Court to conclude that she is eligible for additional scheduled right knee
benefits when there is no direct causal connection between her right knee
condition and the work-related injury. Worker does not provide any authority to
support her argument, and therefore, we assume that none exists.
In re
Adoption of Doe,
100 N.M. 764, 765,
676 P.2d 1329, 1330 (1984). We allow
recovery for a preexisting condition when it combines with a workplace injury
to produce an overall scheduled disability or a permanent disability.
See
Smith,
2003-NMCA-097, ¶¶ 16-18;
Edmiston,
1997-NMCA-085, ¶¶ 23-25.
However, when there is no causal relationship between the preexisting condition
and the workplace injury, we decline increased benefits under the WCA.
See
Holliday v. Talk of the Town Inc.,
98 N.M. 354, 356,
648 P.2d 812, 814 (Ct.
App. 1982) (holding that an illness that was not causally related to the work
injury or the employment could not combine with the work-related injury to
increase benefits). Based on the current status of Worker’s two knee injuries,
she is not entitled to scheduled benefits for her right knee when there is no
causal connection between the accidental injury and her preexisting right knee
impairment.
See NMSA 1978, §
52-1-28(A)(3) (1987) (“Claims for workers’
compensation shall be allowed only . . . when the disability is a natural and
direct result of the accident.”).
{8} We affirm the WCJ’s
decision.
CELIA FOY CASTILLO, Judge
Topic Index for Jojola v. Fresenius Medical Clinic,
Docket No. 29,217
WC-CD Combination of
Disabilities
WC-PE Pre-Existing
Condition
WC-WG Workers’ Compensation,
General