Baca v. LOS LUNAS COMMUNITY PROGRAMS
149 N.M. 198
N.M. Ct. App.2010Background
- Worker developed PTSD from a December 10, 2005 sexual assault suffered at work and was diagnosed with PTSD after reporting it to Employer on December 29, 2005.
- Worker returned to work April 1, 2006, but was reassigned to a facility with less overtime pay.
- WCJ found the assault was a compensable accident and awarded treatment for PTSD but denied overtime-based TTD; WCJ excused late notice under 52-1-29(A) and tolled under 52-1-29(B) due to posters.
- Worker alleged overtime should be included in TTD and that notice was timely because PTSD prevented reporting within 15 days; Defendants challenged IME on causation.
- Defendants appealed, Worker cross-appealed; issues include notice timeliness, IME, and overtime in TTD; appellate court reversed in part and remanded for recalculation.
- Court’s decision includes that notice was timely, IME denial proper, but overtime must be included in TTD calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of notice under 52-1-29(A) | Baca’s PTSD prevented timely reporting. | Notice was not timely; posters not proven posted. | Timeliness supported; PTSD excused notice under statute. |
| Right to an IME on causation | Statutory amendment allows IME when causation dispute exists. | No dispute under prior law; request untimely and prejudicial. | WCJ did not abuse discretion; no delay to trial required beyond timely notice. |
| Overtime wages in TTD calculation (52-1-25.1) | Overtime must be included in pre-injury wage; entitlement to full TTD before MMI. | Overtime excluded or discretionary; not proven reduced overtime due to disability. | Overtime must be included in TTD; worker entitled to reduced TTD when overtime is reduced. |
Key Cases Cited
- Ramirez v. IBP Prepared Foods, 130 N.M. 559, 28 P.3d 1100 (2001-NMCA-036) (IME framework and orderly medical process; causation disputes and IMEs)
- Grine v. Peabody Natural Res., 140 N.M. 30, 139 P.3d 190 (2006-NMSC-031) (CAUSATION cannot generally be addressed via IME when medical providers are in dispute)
- Bianco v. Horror One Prods., 145 N.M. 551, 202 P.3d 810 (2009-NMSC-006) ( WCJ post-judgment motion timing and appellate scheme for WC cases)
- Garnsey v. Concrete Inc. of Hobbs, 122 N.M. 195, 922 P.2d 577 (1996-NMCA-081) (latent injury concept—clock starts when injury becomes known)
- Flint v. Town of Bernalillo, 878 P.2d 1014 (Ct.App.1994) (latent injury recognition and notice timing)
- Ortiz v. BTU Block & Concrete Co., 122 N.M. 381, 925 P.2d 1 (1996-NMCA-097) (full TTD baseline and pre-injury wage concepts)
- State v. Guerra, 130 N.M. 302, 24 P.3d 334 (2001-NMCA-031) (interpretation of shall in wage reduction scenarios)
- Bragg v. ABN AMRO N. Am., Inc., 579 F.Supp.2d 875 (E.D. Mich.2008) (distinguishing objective evidence to support disability findings)