1. Wynelle Valdez (Worker) appeals her workers’ compensation award of scheduled injury benefits. She challenges the constitutionality of the permanent total disability statute and the failure of the workers’ compensation judge (judge) to award total or partial disability benefits.
I. FACTUAL AND PROCEDURAL BACKGROUND
2. Worker worked at Wal-Mart as a janitor, waiter, cashier, stocker and food preparer. On April 10, 1993, two connected booths fell on and injured Worker’s right foot. In October 1993, Worker quit her job because she could not tolerate the pain. She has had two surgeries on her foot. Physicians have diagnosed Worker with chronic pain and gait derangement. As a result, the physicians recommended various restrictions concerning standing, walking, lifting, and working in high places and on uneven surfaces.
3. Worker filed her first claim for workers’ compensation in March 1994, seeking temporary total disability or permanent partial disability. The Workers’ Compensation
23.....Worker, although very limited to walking and standing for any extended period of time, has not sustained permanent and total loss of use of both hands or both arms or both feet or both legs or both eyes or any two of them as required in § 52-1-25 for permanent total disability benefits at one hundred percent.
30. Although Worker has significant limitations and cannot return to the job she has previously held because of the walking and standing involved, ... Worker is physically capable of sedentary work.
The judge’s conclusions of law included:
8.....Worker has a fifty three percent (53%) physical impairment of her right lower extremity and is entitled to two hundred (200) weeks of scheduled injury disability payments from [the] date of [her] maximum medical improvement, June 7, 1995.
11. There is no medical evidence that ... Worker has disabling depression, back pain, or any other condition to remove her from the scheduled injury portion of the Workers’ Compensation Act, § 52-1-13.
12.....Worker is not totally disabled vocationally to remove her from the scheduled injury portion of the Workers’ Compensation Act, § 52-2-43 [sic].
13.....Worker is not totally disabled as defined by § 52-1-25 (effective January 1, 1991).
On appeal, Worker raises three specific issues: (1) the constitutionality of the permanent total disability benefit statute, (2) the judge’s failure to award total disability benefits, and (3) the judge’s method of determining the permanent partial disability award.
II. DISCUSSION
A. The Permanent Total Disability Benefit Statute and Equal Protection
4. The judge held that Worker was not entitled to permanent total disability benefits under NMSA 1978, Section 52-1-25 (1991). Section 52-1-25(A) provides: “As used in the Workers’ Compensation Act [this article], ‘permanent total disability’ means the permanent and total loss or loss of use of both hands or both arms or both feet or both legs or both eyes or any two of them.”
5. Worker argues that Section 52-1-25 violates equal protection because the statute arbitrarily denies total disability to workers who are unable to work and grants total disability to those who can work. Although Employer-Insurer address a due process challenge in their answer brief, we do not discuss this issue because Worker does not raise it in her briefs.
6. The federal and state constitutions provide for equal protection of the laws. The Fourteenth Amendment to the United States Constitution provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1. Similarly, Article II, Section 18 of the New Mexico Constitution states: “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws.” We have interpreted the Equal Protection Clauses of the United States and New Mexico Constitutions “as providing the same protections.” Mieras v. Dyncorp,
7. There are three standards of review that have been traditionally applied to
8. Strict scrutiny applies when legislation infringes fundamental constitutional rights or creates suspect classifications. Richardson v. Carnegie Library Restaurant, Inc.,
9. Intermediate scrutiny applies to legislation “infringing important but not fundamental rights, and involving sensitive but not suspect classes.” Richardson,
10. The rational basis test applies when the statute does not affect fundamental or important rights and does not create suspect or sensitive classifications. See id.; Mieras,
11. The threshold inquiry of the equal protection analysis is whether Section 52-1-25 results in dissimilar treatment of similarly-situated individuals. Madrid v. Saint Joseph Hosp., 1996 NMSC 064, 1 35,
12. Section 52-1-25 does not create separate classes of workers subject to differential treatment. The statute evaluates all workers equally in its requirements for permanent total disability. See Montez v. J & B Radiator, Inc.,
13. We hold that the rational basis test is the appropriate constitutional standard in this appeal. “[L]egislative acts are presumptively valid and normally are subjected to the rational basis test.” Richardson,
15. Section 52-1-25 is rationally related to legitimate goals. See Mieras,
B. The Judge’s Failure To Award Worker Total Disability Benefits
16. Worker next argues that the judge erred in not awarding Worker total disability benefits under Section 52-1-25. Because our decision turns on the interpretation of the permanent total disability statute, we review this question of law de nova. See Krahling v. First Trust Nat’l Ass’n,
17. Worker received scheduled injury benefits under NMSA 1978, Section 52-1-43 (1989). She contends that the scheduled injury section allows for total disability where the disability arose solely from injuries to a specific body member scheduled in Section 52-1-43. See American Tank & Steel Corp. v. Thompson,
18. The determination of total disability, however, differed when American Tank and Mendez, which are relied on by Worker, were decided. The applicable total disability statutes in these two cases defined total disability as:
a condition whereby a work[er], by reason of an injury arising out of, and in the course of his employment, is wholly unable to perform the usual tasks in the work he was performing at the time of his injury, and is wholly unable to perform any work for which he is fitted by age, education, training, general physical and mental capacity, and previous work experience.
American Tank,
19. The standard for total disability in American Tank and Mendez focused on the worker’s ability to perform work. See American Tank,
20. Similarly, Worker’s other arguments regarding the judge’s failure to award Worker total disability benefits do not involve Section 52-1-25. Worker argues that we should determine total disability by factors applicable to the partial disability analysis. Worker challenges: (1) the judge’s finding that Worker is physically capable of sedentary work, (2) his conclusion that Worker has no condition to remove her from the scheduled injury section, and (3) the judge’s failure to award an impairment rating for Worker’s pain. These factors, however, do not bear on the determination of total disability benefits. See § 52-1-25. Rather, they are considerations of partial disability determination. See NMSA 1978, §§ 52-1-26 to -26.4 (1990, effective Jan. 1, 1991); NMSA 1978, §§ 52-1-42 to -43 (1991).
21. As Worker notes in her brief, she seeks total disability, not an increase in partial disability benefits through the formula in Section 52-1-26. The weakness in Worker’s argument in this regard, however, is that the considerations for partial disability determination were not extended to total disability by the legislature. See § 52-1-25. Consequently, the judge did not err in failing to award Worker total disability benefits.
C. Analysis of The Judge’s Scheduled Injury Award
22. Worker challenges the judge’s award of scheduled injury benefits under Section 52-1-43. Worker argues that the judge should have granted her partial disability benefits under Section 52-1-26. Viewing the evidence “‘in the light most favorable to the agency’s decision,’ ” we examine the whole record to determine if substantial evidence supports the judge’s award. Martinez v. Southwest Landfills, Inc.,
23. Worker asserts that the judge erred in solely relying on the impairment rating in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (AMA Guides) to determine loss of use under Section 52-143. See Madrid, 1996 NMSC 064, ¶19,
24. The record reveals, however, that the judge did not solely rely on the AMA Guides’ impairment rating to determine Worker’s loss of use. The judge’s findings of fact indicate that he was aware of Worker’s vocational background and limitations resulting from her injury. The compensation order establishes that the judge considered Worker’s pain. Worker and her doctors testified concerning the pain. Worker stated that she experienced pain in her foot and leg. Dr. Diskant testified that Worker had a 74% impairment of the foot, which corresponded to a 52% impairment of the lower extremity. Dr. Diskant - also believed that the impairment tables in the AMA Guides consider pain in calculating impairment. The judge concluded that Worker had a 53% impairment of her right lower extremity. The distinction between the AMA Guides and the judge’s impairment ratings reveals that the judge was not constrained by the AMA Guides. Rather, the judge’s impairment rating illustrated that he relied on both Worker’s and the doctors’ testimonies in his determination. Viewing the evidence in the light most favorable to the judge’s decision, we hold that substantial evidence supported his award of scheduled injury benefits.
III. CONCLUSION
25. We understand why some applications of the total disability statute may be considered by some to be impractical and even inequitable. We fully appreciate Worker’s example that an accountant who has lost both feet would qualify for permanent total disability benefits, in spite of the fact that he or she would be able to continue his or her work as an accountant. The legislative changes of our state’s workers’ compensation law during the past twenty years or so have significantly altered the rights and liabilities of both workers and their employers. This appeal illustrates that, in the view of some, these changes may not have been an improvement that is considered fair to both workers and their employers. Our case law, however, requires us not to question the policy, wisdom, or justness of the legislature’s enactments. In this appeal, our deference to the legislature compels us to uphold the statute’s constitutionality.
26. Having given careful consideration to Worker’s arguments, we conclude that the judge’s award of scheduled injury benefits was correct, that Worker has not demonstrated that she meets the requirements for total disability, and that substantial evidence supports the judge’s decision.
27. IT IS SO ORDERED.