Leo v. Cornucopia RestaurantLeo v. Cornucopia Restaurant
- Reporters:
- ,
- Before:
- Donnelly
OPINION
DONNELLY, Judge.Employer and Insurer (Respondents) appeal, and Rogelio Leo (Claimant) cross-appeals, from a compensation order requiring Respondents to pay Claimant compensation for a permanent partial disability of 61%, and a later order directing that Claimant’s attorney fees be paid one-half by Claimant and one-half by Respondents.
Respondents contend in their appeal that the Workers’ Compensation Judge (Judge) erred as a matter of law in determining Claimant’s residual physical capacity under
After initial briefing, this Court invited the participation of amicus curiae. Both the New Mexico Trial Lawyers Association and the Workers’ Compensation Administration submitted amicus briefs. These briefs were of significant assistance to this Court in resolving this case. For the reasons discussed below, we affirm the Judge’s determination of Claimant’s residual physical capacity, reverse the determination of Claimant’s impairment rating, and reverse the determination that Respondents are liable for only one-half of Claimant’s attorney fees.
FACTS
In April 1991 Claimant was employed as a kitchen helper at the Cornucopia Restaurant (the Restaurant) in Albuquerque. His position was classified as heavy labor.
Prior to his employment with the Restaurant, Claimant had a history of preexisting heart and lung problems. He also suffered from rheumatic heart disease, asthma, and bronchitis. In 1989 the aortic and mitral valves in his heart were surgically replaced. As a result of the valve replacement, Claimant takes Coumadin, an anticoagulant, and Lanoxin to slow down atrial fibrillation.
Before trial, Claimant made a formal offer of judgment of 20% permanent partial disability; Respondents rejected the offer. Also prior to trial, the Parties stipulated to Claimant’s age, education, vocational preparation, and to the fact that all Claimant’s previous employment had involved medium or heavy labor. Following trial, the Judge found, among other things, that: Claimant’s preexisting heart and lung conditions together represented a preexisting physical impairment of 58%; the injury to Claimant’s back resulted in a permanent physical impairment of 5%; the fall down the stairs did not exacerbate or accelerate Claimant’s heart and lung conditions, although the heart and lung conditions imposed significant restrictions on the treatment of Claimant’s back condition and on his recovery from the back injury; prior to the injury, Claimant had been performing heavy labor; and after the injury, Claimant’s back condition in combination with the heart and lung conditions limited him to performing sedentary jobs. The Judge determined that the degree of Claimant’s permanent partial disability should be calculated by use of the statutory formula under
Based on the above facts, pursuant to Section 52-1-26.1, the Judge calculated Claimant’s permanent partial disability rating based on an impairment rating of 5% and a residual physical capacity rating of eight, representing the points assigned by statute, when a worker was doing heavy labor before an injury and is limited to sedentary labor after an injury. Based on the formula, the Judge determined that Claimant was 61% permanently partially disabled.
Claimant’s attorney then filed a motion for attorney fees. In his motion and supporting documents, Claimant informed the Judge of the offer of judgment made prior to trial. Claimant argued that, under
STATUTORY CONSTRUCTION
Resolution of each of the issues in this ease necessitates inquiry into the meaning and application of certain recent amendments to the Workers’ Compensation Act, which became effective January 1, 1991. 1 Thus, we begin our analysis by reviewing several pertinent principles of statutory construction. When the legislature enacts a statute that is clear and unambiguous, it is the duty of the courts to enforce the law as written. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994); V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993). “A statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses.” State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct.App.1992). The determination of whether the language of a statute is ambiguous is a question of law. See New Mexico State Bd. of Educ. v. Board of Educ., 95 N.M. 588, 590, 624 P.2d 530, 532 (1981).
When faced with an ambiguous statute, the primary task of the courts is to determine the intent of the legislature and construe the statute in a manner that gives effect to that intent. Helman, 117 N.M. at 353, 871 P.2d at 1359; State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988). In making this determination, the courts look primarily to the language used in the statute. Klineline, 106 N.M. at 735, 749 P.2d at 1114. However, we must not be misled by simplicity of language when the other portions of a statute call its meaning into question, or the language of a section of an act conflicts with an overall legislative purpose. Helman, 117 N.M. at 353, 871 P.2d at 1359. Thus, in addition to the language of the statute, we may also consider its history and background. Id.; Klineline, 106 N.M. at 735, 749 P.2d at 1114.
With these principles in mind, we next examine the series of amendments enacted by the legislature in 1990, which apply to the determination of partial disability. The 1990 amendments followed a series of other substantive legislative changes to the Workers’ Compensation Act. See Coslett v. Third St. Grocery, 117 N.M. 727, 729-30, 876 P.2d 656, 658-59 (Ct.App.1994); 1 Carlos G. Martinez, New Mexico Workers’ Compensation Manual § 1.04, at 1-22 to -25 (1993); Kelly Brooks et al., Workers’ Compensation 22 N.M.L.Rev. 845, 845-47 (1992) (Survey). As noted in Coslett, the various changes have often been a reflection of compromises between competing interests. Coslett, 117 N.M. at 729-30, 876 P.2d at 658-59.
The changing and competing policy interests behind compensation laws are reflected in the successive legislative changes defining disability. Most compensation laws adopt one of three approaches in defining disability: a definition based on wage loss, a definition based on impairment rating, or a definition based on a reduction in an individual’s ability to perform work. 1 Martinez, supra § 8.03. Prior to 1986, disability under our Workers’ Compensation Act was defined in terms of the capacity to work. See
In 1990 the legislature again amended the definition of disability.
Against the backdrop of legislative history discussed above, we turn now to the specific contentions of the Parties concerning the statutory formula for determining partial permanent disability adopted by the legislature, and as set forth in Sections 52-1-26.1 to -26.4.
RESIDUAL PHYSICAL CAPACITY
Respondents contend that the Judge erred as a matter of law in determining Claimant’s residual physical capacity pursuant to
Relying on the provisions of the Act and cases that require a worker to establish a causal connection between the injury and the disability, see
At the outset, we note that the “causal connection” language of
In this case, Claimant was physically impaired prior to his employment, but he was still able to do the heavy work required by his job. Thus, we think the Judge correctly determined that Claimant’s usual and customary work was heavy labor. See
IMPAIRMENT RATING
Claimant argues that the Judge erred as a matter of law, in using only the impairment rating for Claimant’s back injury when determining the degree of his permanent partial disability. He contends that this interpretation of the 1990 permanent partial disability amendments is contrary to the holding in Reynolds, which held that an employer is liable for the full extent of a worker’s disability, even if part of the disability is due to a preexisting condition. Reynolds, 69 N.M. at 258, 365 P.2d at 678. For the reasons discussed below, we agree with Claimant that it was improper to limit his impairment rating under the statutory formula to his back injury alone.
The 1990 Act defines permanent partial disability as “a condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment.”
an anatomical or functional abnormality existing after the date of maximum medical improvement as determined by a medically or scientifically demonstrable finding and based upon the most recent edition of the American medical association’s guide to the evaluation of permanent impairment or comparable publications of the American medical association. Impairment includes physical impairment, primary mental impairment and secondary mental impairment[.]
The impairment rating is critical to the determination of the degree of permanent partial disability because it may become either the degree of partial disability or may serve as the base value subject to modification as provided by the statute. See
Reynolds held that an employer was liable for the full amount of a worker’s disability that is causally connected to the accidental injury, even if the worker had a preexisting condition that made his disability more severe than it would otherwise have been. Reynolds, 69 N.M. at 258, 365 P.2d at 678; see also Tollman v. ABF (Arkansas Best Freight), 108 N.M. 124, 131-32, 767 P.2d 363, 370-71 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). After Reynolds was decided, in an effort to ameliorate the consequences of this rule and to encourage the employment of “handicapped” workers, the legislature adopted the Subsequent Injury Act (SIA). See 1961 N.M.Laws, ch. 134, §§ 1-14, now codified at
Because the statutory formula in the Workers’ Compensation Act, and the 1990 amendments thereto, for determining a worker’s residual physical capacity is silent as to the manner by which a judge is to treat a worker’s preexisting physical condition in determining permanent partial disability, we believe that the legislature intended that the formula be interpreted and applied in light of both existing precedent exemplified by Reynolds and the SIA. Accordingly, we conclude that the legislature, in enacting
ATTORNEY FEES
We turn next to an examination of
F. After a recommended resolution has been issued and rejected, but more than ten days before a trial begins, the employer or claimant may serve upon the opposing party an offer to allow a compensation order to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued, subject to the following:
(1) if, within ten days after the service of the offer, the opposing party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof, and thereupon that compensation order may be entered as the workers’ compensation judge may direct. An offer not accepted shall be deemed withdrawn, and evidence thereof is not admissible except in a proceeding to determine costs. If the compensation order finally obtained by the party is not more favorable than the offer, that party must pay the costs incurred by the opposing party after the making of the offer. The fact that an offer has been made but not accepted does not preclude a subsequent offer;
(2) when the liability of one party to another has been determined by a compensation order, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than ten days prior to the commeneement of hearings to determine the amount or extent of liability;
(3) if the employer’s offer was greater than the amount awarded by the compensation order, the employer shall not be hable for his fifty-percent share of the attorneys’ fees to be paid the claimant’s attorney; and
(4) if the employer’s offer was less than the amount awarded by the compensation order, the employer shah pay one hundred percent of the attorneys’ fees to be paid the claimant’s attorney, and the claimant shall be relieved from any responsibility for paying any portion of his attorneys’ fees. [Emphasis added.]
In 1993 the Legislature again amended this statute. See 1993 N.M.Laws ch. 193, § 5;
(3) if the employer’s offer was greater than the amount awarded by the compensation order, the employer shall not be hable for his fifty-percent share of the attorneys’ fees to be paid the worker’s attorney and the worker shall pay one hundred percent of the attorney’s fees due to the workers’ attorney; and
(4) if the worker’s offer was less than the amount awarded by the compensation order, the employer shah pay one hundred percent of the attorneys’ fees to be paid the worker’s attorney, and the worker shall be relieved from any responsibility for paying any portion of the worker’s fees. [Emphasis added.]
We must, however, discern the legislative intent underlying its 1990 version of the statute, since the issue of attorney fees is governed by the law in effect at the time of the disability. See Bateman v. Springer Bldg. Materials Corp., 108 N.M. 655, 657, 777 P.2d 383, 385 (Ct.App.), cert. denied, 108 N.M. 624, 776 P.2d 846 (1989). Thus, the 1990 version, which became effective January 1, 1991, applies to all injuries that became compensable prior to June 18, 1993.
Claimant argues that
Our Supreme Court recently considered similar arguments in Helman. In that ease, the Court characterized the two different approaches to construction as the “ ‘plain meaning’ ” rule and the “ ‘rejection-of-literal-language’ ” approach. Helman, 117 N.M. at 347, 871 P.2d at 1353. The Court noted that the two different approaches are complementary, not conflicting. Id., 117 N.M. at 352, 871 P.2d at 1358. Thus:
if the meaning of a statute is truly clear— not vague, uncertain, ambiguous, or otherwise doubtful — it is of course the responsibility of the judiciary to apply the statute as written and not to second-guess the legislature’s selection from among competing policies____
But courts must exercise caution in applying the plain meaning rule. Its beguiling simplicity may mask a host of reasons why a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., non-frivolous) differences of opinion concerning the statute’s meaning.... In such a ease, it is part of the essence of judicial responsibility to search for and effectuate the legislative intent — the purpose or object— underlying the statute.
Id., 117 N.M. at 352-53, 871 P.2d at 1358-59. In Helman, our Supreme Court held that the plain language of the statute in question was an obvious legislative mistake. Id., 117 N.M. at 352, 871 P.2d at 1358. Thus, the Court construed the statute in the manner consistent with the legislative intent, despite the literal language of the statute.
We believe that the 1993 amendments to
The body of
The use of the word “employer” in
CONCLUSION
In summary, we hold that under the statutory provisions discussed above, when a worker has a preexisting impairment that combines with the impairment from the work-related accidental injury to reduce a worker’s physical capacity, the determination of the worker’s residual physical capacity is properly based on the combined effect of both impairments. Similarly, when a preexisting physical impairment combines with the impairment from the work-related injury to produce the disability, the preexisting physical impairment must be combined with the impairment caused by the on-the-job injury in order to determine the impairment rating. Finally,
Claimant is awarded $2000 for the services of his attorney incident to this appeal.
IT IS SO ORDERED.
APODACA and FLORES, JJ., concur.
Notes
. See
. The amicus briefs of both the Workers’ Compensation Administration and the New Mexico Trial Lawyers Association note that in adopting a formulaic approach to the determination of permanent partial disability, the 1990 amendments enacted by our legislature were influenced in part upon the approach adopted by the Oregon legislature. See