BARRAZA V. ASSOCIATED PROPERTIES INVESTMENT GROUP
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JESUS BARRAZA,
Worker-Appellant,
v.
ASSOCIATED PROPERTIES
INVESTMENT GROUP, INC.,
d/b/a ASSOCIATED PROPERTIES
CONSTRUCTION AND NEW MEXICO
MUTUAL CASUALTY CO.,
Employer/Insurer-Appellees.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION,
Terry S. Kramer, Workers’ Compensation Judge
James Rawley, Albuquerque, NM, for
Appellant
Timothy R. Briggs, Albuquerque, NM, for
Appellees
JAMES J. WECHSLER, Judge. WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge, J. MILES HANISEE, Judge
AUTHOR: JAMES J. WECHSLER
{1} Worker appeals from
the Workers’ Compensation Administration’s (WCA) order granting summary
judgment to Employer/Insurer. Unpersuaded that Worker demonstrated WCA error,
we issued a notice of proposed summary disposition, proposing to affirm.
Employer/Insurer filed a memorandum in support of our notice, and Worker filed
a memorandum in opposition to our notice. We have duly considered the parties’
responses and remain unpersuaded that Worker has demonstrated error.
Accordingly, we affirm.
{2} Worker raises two
issues on appeal. He argues that, although his injury and diagnosis did not
change, the WCA erred by refusing to increase his compensation under NMSA 1978,
Section
52-1-56 (1989), based on (1) the change in his impairment rating
according to the newest edition of the American Medical Association Guide (AMA
Guide), [DS; MIO 3-4] and (2) an allegation that he had a change in physical
capacity. [DS 4; MIO 1-3]
{3} Section 52-1-56 permits
the WCA to increase compensation upon a showing that “the disability of the
worker has become more aggravated or has increased without the fault of the
worker[.]” As Worker acknowledges, the compensation order of October 2005,
under which the parties have been governed, ruled that Worker suffered a
temporary total disability (TTD) from October 2004 through January 2005, when
he reached maximum medical improvement (MMI), and that he suffered no permanent
partial disability (PPD). [MIO 3; RP 176-77] To the extent that Worker’s
alleged change in physical condition relates to a change in physical capacity
that modifies PPD benefits, Defendant was found not to have a PPD, and
therefore, there is no PPD to modify and no original assessment to change under
NMSA 1978, §
52-1-26.4 (2003).
See Cordova v. KSL-Union,
2012-NMCA-083, ¶ 10,
285 P.3d 686, (“PPD benefits are calculated by determining
the level of impairment to the worker and adding to the impairment rating a
calculation of statutorily defined modifiers under Sections 52-1-26.1 through
52-1-26.4 based on the worker’s age, education, and physical capacity”),
cert.
denied, 295 P.3d 599 (No. 33,663, July 19, 2012);
Medina v. Berg
Constr., Inc.,
1996-NMCA-087, ¶ 27,
122 N.M. 350,
924 P.2d 1362 (“Section
52-1-26.4 allows a worker’s initial impairment rating to be modified by his
loss of physical capacity.”).
{4} We also note that
in
Herrera v. Quality Imports,
1999-NMCA-140, ¶¶ 6-8, 128N.M. 300,
992
P.2d 313, this Court held that Section 52-1-56 refers to a change in a worker’s
physical condition, which we held does not include a change in
physicalcapacity.
See id. ¶ 9 (stating that the impractical effect of
including physical capacity modification under Section 52-1-56 would require
“[e]mployers and workers [to] be subject to frequent changes in compensation as
injured workers’ abilities to lift weight changed over time”). Our notice
observed, and Worker has not disputed, that he admitted his physical condition
has remained the same since the compensationorder was entered in 2005. [RP
171-77, 276] Worker’s arguments overlook the above-stated consequences of the
original compensation order and rejectthe language in
Herrera as dictum.
[MIO 2] Worker refers us to no controlling authority indicating that a change in
physical capacity constitutes a change in physical condition, and, under these
circumstances, we are not persuaded to adopt such a view.
{5} Worker also
contends that if we accept his change in physical capacity as a worsening
physical condition occurring at the time of the new AMA Guide, the Sixth
Edition (AMA Guide VI), we should allow a new period of TTD to begin until
Worker reaches MMI. [MIO3] Worker has not explained how he arrived at this
result, and we disagree.
{6} We are not
persuaded that a change in Worker’s impairment rating based solely on a
distinction between AMA Guide VI and the Fifth Edition (AMA Guide V)
constitutes a change in physical condition as contemplated by Section 52-1-56.
Although Worker has not described the AMA Guide VI change that warranted the
determination that he now has an impairment rating, it appears that Worker
relies solely on a change in the AMA Guide and not on a change in his physical
injury. Our notice proposed to hold that Worker’s impairment rating is governed
by the AMA Guide V, which was the applicable AMA Guide at the time that Worker
reached MMI.
See NMSA 1978, §
52-1-24(A) (1990) (“ ‘[I]mpairment’ means
an anatomical or functional abnormality existing after the date of [MMI] as
determined by a medically or scientifically demonstrable finding and based upon
the most recent edition of the [AMA Guide] to the evaluation of permanent
impairment or comparable publications of the [AMA].”).
{7} As we observed, in
Madrid
v. St. Joseph Hosp.,
1996-NMSC-064,
122 N.M. 524,
928 P.2d 250, the Supreme
Court examined the required use of the AMA Guides for purposes of determining
impairment. The Court addressed the fact that the AMA Guides are periodically
revised.
See id. ¶¶ 11, 14-15, 22, 32-37. One of the claims asserted by
the worker in
Madrid was an equal protection challenge to the Workers’
Compensation Act’s (the Act) mandatory application of the most recent edition
of theAMA Guide to the impairment ratings of similarly situated workers who
receive different impairment ratings based solely on when they reached MMI.
See
id. ¶¶ 32-37. The Court rejected the equal protection claim on the basis
that the time of the injury is not, by itself, dispositive of whether workers
are similarly situated.
See id. ¶ 35 (“Where one worker requires
substantial recovery time before reaching MMI, and another worker requires
minimal recovery time before reaching MMI, the workers are not similarly
situated.”). The Court determined that “as drafted, the Act ensures that each
worker will receive an impairment rating and subsequent disability rating based
on current medical developments.”
Id. ¶ 36. We find it to be an
inescapable premise to the Court’s holding that a worker’s impairment is
determined by the version of the AMA Guide that was most recent at the time the
worker reaches MMI.
{8} As indicated,
Worker reached MMI in January 2005, when AMA Guide V was the current edition.
[RP 173, 175, 177] We hold that AMA Guide V governs Worker’s impairment.
{9} We continue to
believe that if the Legislature had intended that an impairment rating could be
adjusted at any time based solely on revisions made to the AMA Guides, the
Legislature would have expressly provided for that result. Instead, the
Legislature indicated that a worsening physical condition was required for a
worker to receive an increase in compensation.
See § 52-1-56. Worker
refers us to no controlling case law that has construed Section 52-1-56 to
permit the modification of a compensation order based on a modification to the
AMA Guide without a change in a worker’s physical condition, and we are not
persuaded to do so here. We agree with Employer’s observation that in the
absence of an express legislative mechanism for modifying a compensation order,
the result advocated by Worker would undermine the finality of compensation
orders and force parties to relitigate issues, contrary to our principles of
res judicata and law of the case.
See, e.g.,
Alba v. Hayden,
2010-NMCA-037, ¶¶ 6-8,
148 N.M. 465,
237 P.3d 767 (explaining the meaning of,
and purpose for, the doctrines of res judicata and law of the case).
{10} For these reasons,
we affirm the WCA’s order denying Worker’s claim.
MICHAEL D. BUSTAMANTE, Judge