SMITH V. ARIZONA PUBLIC SERVICE CO., 2003-NMCA-097,
134 N.M. 202, 75 P.3d 418
HENRY SMITH, Worker-Appellee,
v.
ARIZONA PUBLIC SERVICE COMPANY, Employer-Appellant.
COURT OF APPEALS OF NEW MEXICO
2003-NMCA-097, 134 N.M. 202, 75 P.3d 418
APPEAL FROM THE WORKERS' COMPENSATION
ADMINISTRATION, Gregory D. Griego, Workers' Compensation Judge
Certiorari Denied, No. 28,151, August
4, 2003. Released for Publication August 19, 2003.
Victor A. Titus, H. Steven Murphy, Titus
& Murphy Law Firm, Farmington, NM, for Appellee.
J.E. Casados, Gallagher, Casados &
Mann, P.C., Albuquerque, NM, for Appellant.
RODERICK T. KENNEDY, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, CYNTHIA A. FRY, Judge.
AUTHOR: RODERICK T. KENNEDY.
{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 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.
{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 (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.
Tallman v. ABF (Arkansas Best Freight),
108 N.M. 124, 126-27,
767 P.2d 363, 365-66 .
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 52-1-43(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 (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. In this case, the WCJ found that Worker suffered a scheduled injury which
is the total or partial "loss or loss of use" of a "specific
body member[]" listed in Section 52-1-43(A). The scheduled injury section
states:
A. For disability resulting from an
accidental injury to specific body members, including the loss or loss of use
thereof, the worker shall receive the weekly maximum and minimum compensation
for [total] disability . . . for the following periods:
(43) total deafness in both ears .
. . 150 weeks
B. For a partial loss of use of one
of the body members or physical functions listed in Subsection A of this
section, the worker shall receive compensation computed on the basis of the
degree of such partial loss of use, payable for the number of weeks applicable
to total loss or loss of use of that body member or physical function.
Section 52-1-43(A)(B). This Court has construed the scheduled
injury section as "providing a simplified method for determining the
benefits owed a worker when the sole injury to the worker is the loss or
impairment (total or partial) of certain body members or functions." Twin
Mountain Rock , 117 N.M. at 370, 871 P.2d at 1376.
{10} The plain language of
the scheduled injury section does not preclude a recovery based on the total
impairment resulting from a work-related injury in combination with a
preexisting condition.
See § 52-1-43. In fact, neither the disability
sections nor the scheduled injury section of the Act contains language that
limits recovery to only the work-related injury, and the plain language of the
sections provides no guidance on the effect of preexisting injuries. However,
"[w]hen considering sections of the Workers' Compensation Act, we consider
the language of the particular section in the context of the entire Act."
Draper
v. Mountain States Mut. Cas. Co.,
116 N.M. 775, 777,
867 P.2d 1157, 1159
(1994).
Cf. Lucero v. Smith's Food & Drug Centers,
118 N.M.
35, 37,
878 P.2d 353, 355 (noting that the scheduled injury section has always
been construed independently of disability concepts). Because the statute
itself is silent on this issue regarding preexisting injuries in the scheduled
injury section, we find it proper to consider the enhanced disability issue in
the same context as its application in disability cases, and we also look to
the legislative history and purpose of the Act in rendering our decision.
The Enhanced Disability Concept
Should be Applied to Scheduled Injuries
{11} Worker argues that the
same principle of enhanced disability applied to claims arising under the
disability sections of the Act should apply to cases dealing with scheduled
injuries because there is no distinction between impairment under the
disability and scheduled injury sections, and the tort principle of "the
employer takes the employee as it finds that employee" is applicable to
workers' compensation cases.
See Edmiston,
1997-NMCA-085, ¶ 25.
Essentially, Worker argues that the enhanced disability rule should apply
to all work place injuries, regardless of which benefits apply when the injury
is a direct result of an on the job accident, because that is the purpose of
the Act.
{12} To support his
contention that enhanced disability should apply to scheduled injuries, Worker
relies on the line of disability cases where workers were compensated for their
total disability when a preexisting condition combined with the impairment from
the work-related injury to produce an overall condition of disability.
Reynolds
v. Ruidoso Racing Ass'n,
69 N.M. 248, 258,
365 P.2d 671, 678 (1961);
Edmiston,
1997-NMCA-085, ¶ 23;
Leo, 118 N.M. at 359, 881 P.2d at 719. It is well
established in New Mexico Workers' Compensation law that "where there is a
direct relationship or causal connection between the accidental injury and the
resulting disability, the employee is entitled to compensation to the full
extent of the disability even though attributable in part to a pre-existing
condition."
Reynolds, 69 N.M. at 258, 365 P.2d at 677. The employer
is not only responsible for the aggravation of the prior impairment, but also
"the full extent of the impairment `if the employment aggravated,
accelerated, or combined with the [pre-existing] disease or infirmity to
produce the death or disability for which compensation is sought.'"
Edmiston,
1997-NMCA-085, ¶ 21 (quoting
Reynolds, 69 N.M. at 255, 365 P.2d at 676).
The appropriate standard for determining compensation in such a circumstance is
simply whether or not "the preexisting condition and the workplace injury
combined to produce an overall condition of disability."
Id. ¶ 23.
{13} Here, the WCJ made a
finding that Worker suffered a 59% loss of hearing, and there was substantial
evidence to support that finding.
This 59% total loss was the result of
the work- related injury combined with Worker's preexisting condition, and
thus, Worker is entitled to compensation for his total impairment. Given these
findings, Employer's argument that Worker's total injury is not a direct result
of the accident because Worker is not disabled has no merit.
{14} Employer argues that
given the nature and purpose of compensating scheduled injuries, Worker is not
entitled to an award for his total hearing loss. Employer contends that the
purpose and history of the Act dictate that disability cases be treated
differently from those cases falling under the scheduled injury section of the
Act. Employer's argument is that one purpose of allowing a worker to recover
for the total injury resulting from a work-related injury combined with a preexisting
condition is to keep the worker off welfare rolls.
See Casias v. Zia
Co.,
93 N.M. 78, 80,
596 P.2d 521 . Because those that are disabled will
not be able to return to work, it is out of fairness and efficiency that the
legislature deems it necessary to compensate workers for the total, enhanced
disability.
Id. Employer maintains that because Worker is not disabled,
his ability to work remains, and enhanced compensation is unnecessary and
unfair to Employer.
We disagree with Employer's contention.
{15} The loss of the worker's
ability to work is no longer determinative of the worker's entitlement to or
the amount of compensation under the Act after the worker reaches maximum
medical improvement. Since the 1990 amendments to the Act, permanent disability
is expressly defined in terms of impairment,
see NMSA 1978, §
52-1-26,
which is in turn defined as "an anatomical or functional abnormality
existing after the date of maximum medical improvement[.]" NMSA 1978, §
52-1-12(A). Thus, even if a worker can still perform the duties of his or her
job, the worker may still be entitled to compensation for a "permanent
impairment." Section 52-1-26(B). Permanent partial disability is
calculated pursuant to a statutory formula, § 52-1-26(C), and not in accordance
with the worker's ability or inability to function at work.
{16} In this particular case,
the work-related injury further injured the same organ affected by the
preexisting condition. The total injury is therefore the natural and direct
consequence of the work-related accident.
See Reynolds, 69 N.M.
at 257, 365 P.2d at 680. Furthermore, "disability" in Section 52-1-43
does not mean one is unable to work. Rather, disabled means "physical
impairment."
Witcher v. Capitan Drilling Co.,
84 N.M. 369, 371,
503
P.2d 652, 654 . Therefore, the fact Worker is not disabled does not limit his
recovery to only that portion that stemmed from the accident itself. He is
compensated for the full extent of the injury for as long as the schedule
dictates.
{17} Given that a purpose of
the Act is to compensate injured workers, while also being fair to employers,
Anaya
v. N.M. Steel Erectors, Inc.,
94 N.M. 370, 372,
610 P.2d 1199, 1201 (1980),
we find that the legislature did not intend to limit Worker's recovery to only
that portion of his injury that was caused by the accident. We find it telling
that when our legislature adopted the 1990 amendments to the Act, it was
influenced in part by Oregon's workers' compensation act.
Leo, 118 N.M.
at 358 n. 2, 881 P.2d at 718 n. 2. Oregon's statutory restriction directing
that a preexisting condition is not compensable unless the accidental injury
with which it combines is the "major contributory cause" of
"disability or need for treatment," Or. Rev. Stat. § 656.005(7)(a)(B),
was omitted from the New Mexico provisions relating to the method for
determining the extent of a worker's permanent partial disability.
{18} As in
Reynolds
and
Edmiston, we hold that employers take their employees as they find
them, so as to provide compensation under the Act for the totality of loss that
proceeds as a natural and direct consequence of a work-related injury. We hold
that the WCJ correctly considered the combined effects of the preexisting
hearing loss with the hearing loss attributable to the work-related accident.
{19} The parties agree that
the first issue is dispositive as to the issue of attorney fees. Having
affirmed the WCJ's finding, we also affirm the award of Worker's attorney fees.
{20} Based on the
foregoing conclusions we affirm the WCJ's decision.
RODERICK T. KENNEDY, Judge