{1} Juan Souter (Worker) appeals from an order of the Workers’ Compensation Judge (WCJ) denying Worker total temporary disability (TTD) benefits from Ancae Heating and Air Conditioning and its insurance carrier (Employer). Worker seeks TTD benefits for the period during which he was recovering from back surgery after suffering a recurrence of a work-related injury. We reverse the WCJ’s dismissal of Worker’s claim and remand this matter to the WCJ to determine the amount of TTD benefits, attorney fees, and costs to be paid by Employer.
BACKGROUND
{2} In July 1994, Worker injured his back and timely filed complaints for TTD and permanent partial disability (PPD) benefits. In October 1995, the Workers’ Compensation Administration (WCA) entered a recommended resolution for benefits (1995 Resolution), which all parties accepted. Pursuant to the 1995 Resolution, Worker was entitled to fifty weeks of TTD and 450 weeks of PPD benefits for a total of 500 weeks of benefits.
{3} Eleven times between July 1995 and April 1997, Worker petitioned the WCA for approval of partial lump-sum payments for debt, pursuant to NMSA 1978, § 52-5-12(0 (1993). With one exception not material to this appeal, the WCA approved the partial lump-sum payments. The second to last order entered on November 18, 1996 (November 1996 Order), unlike the other orders, contained a provision to the effect that Employer would have no further obligation to provide disability benefits to Worker even if his medical condition worsened. Overall, the combined total of lump-sum payments and PPD benefits that Worker received totaled the monetary equivalent of 450 weeks of PPD as set out in the 1995 Resolution.
{4} In December 1998, approximately fifteen months after Worker received his last PPD payment but within the 500 week benefit period provided for in the 1995 Resolution, Worker’s back pain returned. In early February 1999, Worker underwent corrective surgery for a herniated disc and reached maximum medical improvement (MMI) on August 9, 1999. Employer paid for the surgery but denied Worker’s request for any additional TTD payments.
{5} On August 23, 1999, Worker filed a complaint (1999 Complaint) with the WCA to reopen the 1995 Resolution based on a change in condition. Worker sought TTD benefits for the thirty-two week period from the date his back pain returned to his MMI after surgery, less the PPD benefits already paid. Worker sought no additional PPD benefits.
{6} After formal hearing, the WCJ held that Worker’s back problems arising in December 1998 were causally related to the July 1994 work-related back injury and Worker was temporarily totally disabled within the meaning of the Workers’ Compensation Act, NMSA 1978, § 52-1-1 (1987) (Act) for the thirty-two week period. However, the WCJ also determined that Worker was not entitled to additional TTD benefits and dismissed Worker’s 1999 Complaint with prejudice. The dismissal was based on several findings summarized as follows: (1) the November 1996 Order was valid and binding, therefore, the doctrines of law of the ease
{7} Worker raises eight issues on appeal. We have reorganized and combined the issues and will address them as follows: (1) Section 52-5-12 and the effect of the language in the November 1996 Order; (2) whether Worker “exhausted” his right to further benefits or is otherwise barred from seeking increased benefits; (3) whether the WCJ erred in not awarding Worker additional TTD benefits; and (4) whether Section 52-5-9(B) precluded modification of Worker’s benefits. We hold in Worker’s favor on all of these issues. Accordingly, Worker’s challenge to the WCJ’s exclusion of Employer’s attorney as a witness is rendered moot.
DISCUSSION
I. Section 52-5-12 and the Effect of the November 1996 Order
{8} The November 1996 Order included the following language:
IT IS FURTHER ORDERED that, upon making the payments outlined above, Employer shall have no further obligation to provide Worker workers’ compensation disability benefits of any nature whatsoever, even if the Worker’s medical condition worsens, as a result of Worker’s July 1, 1994 accidental injury while working for Employer, Ancae Heating and Air.
For convenience, we shall refer to this paragraph as the Further Benefits Provision. The November 1996 Order was the only lump-sum payment order prepared by Employer’s attorney. Worker was not represented by counsel in connection with the November 1996 Order. Worker argued below and now argues on appeal that this provision violates Section 52-5-12(A) by purporting to release Employer from liability for further benefit payments when a partial lump-sum payment is made. The WCJ’s interpretation of Section 52-5-12 is an issue of law that we review de novo. See Herrera v. Quality Imports,
{9} To evaluate the effect of the Further Benefits Provision we must determine whether the Act allows a worker to release an employer from liability for future compensation, even if the worker’s condition worsens, in exchange for partial lump-sum payment for debt. Section 52-5-12 of the Act governs lump-sum payments and provides in pertinent part:
A. ... Except as provided in Subsections B, C and D of this section, lump-sum payments in exchange for the release of the employer from liability for future payments of compensation or medical benefits shall not be allowed.
B. With the approval of the workers’ compensation judge, a worker may elect to receive compensation benefits to which he is entitled in a lump sum if he has returned to work for at least six months, earning at least eighty percent of the average weekly wage he earned at the time of injury or disablement. If a worker receives his benefit income in a lump sum, he is not entitled to any additional benefit income for the compensable injury or disablement and he shall only receive that portion of the benefit income that is attributable to the impairment rating as determined in Section 52-1-24 NMSA 1978....
C. After maximum medical improvement and with the approval of the workers’ compensation judge, a worker may elect to receive a partial lump-sum payment of workers’ compensation benefits for the sole purpose of paying debts that may have accumulated during the course of the injured or disabled workers’ disability....
{10} Subsection (A) prohibits any lump-sum payments in exchange for release of liability for benefits except as provided in Subsections (B), (C), and (D). Only Subsection (B) expressly provides that a worker who receives a total lump-sum payment is not entitled to “any additional benefit income for the compensable injury or disablement.” In contrast, Subsection (C) relating to partial lump sums contains no language releasing an
{11} This. Court has addressed the relationship between Subsections (A), (B), and (C) of Section 52-5-12 on two occasions. In Quintana v. Ilfelds,
{12} In rejecting Employer’s argument, we observed that full lump-sum payments are restricted to workers who have recovered substantially from their injuries and are primarily for convenience, while partial lump-sum payments are restricted to the amount necessary to pay accumulated debts of workers who may never be able to return to work and are based on need. Cabazos,
{13} In construing a statute, our goal is to give primary effect to the intent of the legislature. Draper v. Mountain States Mut. Cas. Co.,
{14} Reading Section 52-5-12 of the Act in conformity with these principles, we conclude that any provision allowing the release of the employer from liability in exchange for future payments of compensation or medical benefits must be found within that particular subsection. See Cabazos,
{15} Employer argues that Subsection (C) does allow this type of release and relies on the following language found in Ramirez v. Johnny’s Roofing, Inc.,
Section 52-5-12(C) (1990) provides for the partial lump-sum settlement of workers’ compensation claims. Such agreements allow workers at MMI to receive a portion ofthe benefits to which they are entitled in exchange for releasing their employers from liability for making biweekly payments for a period of time.
We fail to see how this language advances Employer’s argument. The statement pertains only to releases of an employer’s liability for making biweekly payments for a period of time. Partial lump-sum payments are customarily treated as credits against benefits. See West v. Home Care Res.,
{16} Employer also relies on Ramirez and the cases cited therein in support of his argument that the Further Benefits Provision is binding under general principles of contract law. See Cruz v. Liberty Mut. Ins. Co.,
{17} In summary, we hold that Subsections (A) and (C) of Section 52-5-12 do not allow the release of an employer from liability for further benefit payments in exchange for partial lump-sum payments when Worker’s condition becomes worse. Consequently, the Further Benefits Provision contained in the November 1996 Order is incompatible with the Act because it expands the scope of releases in connection with partial lump-sum payments beyond that allowed under Section 52-5-12. Accordingly, the Further Benefits Provision is invalid as a matter of law. See Rumpf v. Rainbo Baking Co.,
II. “Exhaustion” of Payments
{18} The 1995 Resolution provided for a maximum benefit period of 500 weeks for Worker, who is less than eighty percent disabled. See Section 52-1-42(A). While Worker was receiving his periodic PPD payments, he also requested and received eleven partial lump-sum payments for debt, pursuant to Section 52-5-12(C). The WCJ approved the last lump-sum payment on April 10, 1997. Worker’s last PPD payment was made on or about September 22, 1997. Had Worker received no partial lump-sum payments for debt, his PPD benefits would have continued until approximately December 2003. The WCJ found and concluded that the partial lump-sum payments had “accelerated” the 500-week benefit period such that no further benefits would be due after Worker received disability payments covering the 500-week statutory period. The WCJ further concluded that prior to December 1998, Worker had “exhausted” all the benefits to which he was entitled as a result of the July 1994 injury; and, therefore, pursuant to Sections 52-1-42 and 52-5-12(A), Worker was not entitled to additional benefits. Employer agrees with the WCJ that once a worker has received the equivalent of 500 weeks of benefits, he has no right to additional benefits
{19} To the extent that the WCJ’s determination involves a mixed question of law and fact, we accord deference to the factual findings regarding the amount of benefits worker received but review de novo the legal determination that Worker is precluded from seeking a modification of benefits. See Strata Prod. Co. v. Mercury Exploration Co.,
{20} We agree with Worker that under Sections 52-1-56 and 52-1-42 Worker is entitled to petition for modification at any time during the 500-week statutory benefits period, even if Worker has received all of the PPD benefits to which he was entitled through partial lump-sum payments before the 500-week period expired. The law is settled in New Mexico that a compensation order can be reopened during the remainder of the statutory period for the purpose of requesting an increase or decrease in benefits. In our recent decision in Henington v. Technical-Vocational Inst.,
{21} Clearly, if Worker had not elected to receive partial lump-sum payments, he would have continued to receive periodic PPD benefits until the end of 2003. During that time, pursuant to Section 52-1-56 and established precedent, Worker could seek a modification of benefits under Section 52-1-56. See DiMatteo v. County of Dona Ana,
{22} Accordingly, we hold that a worker may, pursuant to Section 52-1-56, seek an increase in his compensation based on change in condition at any time during the statutory benefits period under Section 52-1-42 even if, as a result of receiving partial lump-sum payments for debt pursuant to Section 52-5-12(0), the worker has received the monetary equivalent of the benefits allowed in a compensation order before the benefits period expires.
III. Worker’s Entitlement to Additional TTD Benefits and Law of the Case Doctrine
{23} The WCJ found that Worker’s December 1998 back injury was causally related to the July 1994 injury, and that Worker was temporarily totally disabled as a result of the injury from December 29, 1998, through August 9,1999. Worker has met his burden with respect to change in condition. See Amos v. Gilbert W. Corp.,
IV. Benefit Preclusion Under Section 52-5-9(B)
{25} In response to Worker’s 1999 Complaint, Employer raised the Further Benefits Provision as a defense. The WCJ accepted Employer’s conclusion of law that Worker’s claim was barred because Worker did not seek review of the November 1996 Order within two years after it was entered, pursuant to Section 52-5-9(B). Worker challenges the WCJ’s conclusion, arguing that the date of Worker’s last benefit payment is the applicable date under Section 52-5-9(B), and, therefore, Worker timely challenged the November 1996 Order by filing his 1999 Complaint within two years of September 21, 1997, the date his last benefit payment was made. We agree with Worker that his claim for benefits was not time barred under Section 52-5-9(B).
{26} The interpretation of Section 52-5-9(B) is a question of law, which we review de novo. See Ramirez v. IBP Prepared Foods,
{27} Section 52-5-9(B) permits a party to seek modification of a compensation order if review is sought “within two years after the date of the last payment or the denial of benefits” upon grounds including “change in condition.” See also Fasso v. Sierra Healthcare Ctr.,
{28} Employer argued that by filing the 1999 Complaint, Worker was in effect seeking review of the November 1996 Order for which the limitation period had run. Employer overlooks the fact that the November 1996 Order was not a denial of benefits because it expressly provided for an additional 70.85 weeks of PPD benefits. Five months later in April 1997, the WCJ approved another partial lump-sum payment order. Until Worker’s condition Vorsened, he had no grounds for seeking additional benefits. While Employer would like to focus on the 1996 Order, the limitation period in the statute is triggered only by date of denial of benefits or last payment. The “denial of benefits” occurred in 1999, when Employer denied Worker’s request for TTD payments. It was only after this denial, on August 23, 1999, that Worker filed his 1999 Complaint. The 1999 Complaint was filed within two years of the denial and therefore is not time barred.
V. The WCJ’s Refusal to Allow Worker to Call Employer’s Attorney as a Witness
{30} Worker also argues on appeal that the WCJ erred in sustaining the objection of Employer’s attorney to being called as a witness at the trial to testify about the November 1996 Order. This issue is rendered moot by our determination that the Further Benefits Provision is invalid. See Srader v. Verant,
CONCLUSION
{31} For the reasons set forth above, we reverse the WCJ’s dismissal of Worker’s claim for TTD benefits due to a change in condition. Employer does not challenge the WCJ’s findings that Worker’s back problems in December 1998 were causally related to his July 1994 work-related back injury. Therefore, we remand this matter to the WCJ (1) to determine the amount of TTD benefits to which Worker is entitled for the period from December 29, 1998, through August 9, 1999, taking into account the amount of PPD payments that Worker has already received for this time period; and, (2) in light of worker’s recovery of benefits pursuant to this opinion, to award attorney fees, pursuant to NMSA 1978, § 52-1-54 (1993) including fees for work incident to this appeal.
{32} IT IS SO ORDERED.