Gold v. Armand Hammer United World Coll.

JASON GOLD, Worker-Appellant, v. ARMAND HAMMER UNITED WORLD COLLEGE,and NM SW CASUALTY CO. C/O AIG, Employer/Insurer-Appellee.

No. A-1-CA-36052

COURT OF APPEALS OF THE STATE OF NEW MEXICO

September 18, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION

David L. Skinner, Workers' Compensation Judge

Dorato & Weems LLC

Derek Weems

Albuquerque, NM

for Appellant

Hoffman Kelley Lopez L.L.P.

David Wertz

Albuquerque, NM

for Appellees

Workers' Compensation Administration

WCA Assistant General Counsel

Craig C. Kling, Special Assistant Attorney General Albuquerque, NM

for Amicus Curiae

MEMORANDUM OPINION

BOHNHOFF, Judge.

{1} Jason Gold (Worker) appeals from the Workers' Compensation Judge's (WCJ) September 22, 2016 compensation order and November 2, 2016 amended compensation order, as modified by the WCJ's October 24, 2016 order on motion for reconsideration, and November 22, 2016 memorandum opinion. Worker raises three issues on appeal: (1) the WCJ erred in not awarding Worker seven hundred weeks of permanent partial disability (PPD) benefits based on his secondary mental impairment; (2) the WCJ erred in failing to adopt the parties' pretrial stipulations and entered a judgment that went beyond the parties' requested relief; and (3) the WCJ erred in relying upon the American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition (AMA Guides Sixth Edition) in establishing Worker's impairment rating. We affirm.

BACKGROUND

{2} This is a memorandum opinion; because the parties are familiar with the facts and procedural posture of the case, we set forth only such facts and law as are necessary to decide the issues raised.

{3} Worker worked as a maintenance employee at Armand Hammer United World College (Employer). On May 3, 2012, Worker suffered an on-the-job, compensable accident when he stepped or fell out of a pickup and injured his right great toe. To address the injury, Dr. Rockwood performed two surgical procedures on Worker: "excision of tibial sesamoid repair of metatarsal phalangeal joint capsule, common excision of fragment and arthrotomy of interphalangeal joint" and "resection of neuroma and burying of nerve of right foot." The surgeries worsened Worker's condition. He developed Chronic Regional Pain Syndrome, Type 1 (CRPS), which in turn resulted in "gait disturbance with inverted foot deformity and number two through four digits extended and not purchasing ground." Further, as a result of this physical condition Worker developed a secondary mental illness in the form of panic attacks, chronic pain, depression and anxiety.

{4} Worker was not able to return to his job duties and Employer terminated his employment because it could not accommodate his physical restrictions. On June 26, 2014, Worker filed a complaint seeking benefits under the Workers' Compensation Act, NMSA 1978, Sections 52-1-1 to -52-1-70 (1929, as amended through 2017) (the Act), and his case was tried by the WCJ on August 30, 2016. The WCJ ruled as follows: (1) Worker reached maximum medical improvement (MMI) for his CRPS as of March 25, 2014, and for his secondary mental illness as of September 29, 2015; (2)Worker was entitled to temporary total disability benefits from May 2, 2012, to September 29, 2015; (3) Based on the parties' stipulations and the report of the panelists who conducted an independent medical examination (IME), the WCJ declined to find that Worker suffered any further injuries, in particular, "additional injury to the entire right lower extremity, the low back, left knee injury and PTSD"; (4) With respect to Worker's physical condition, the WCJ approved as reasonable and necessary continued management of his CRPS by Dr. Schwartz and her referrals; The WCJ rejected Dr. Rockwood's recommendation of further surgical intervention "in light of the past results of surgical procedures performed by Dr. Rockwood"; (5) The WCJ stated more broadly that, "Continued medical care with Dr. Rockwood is not reasonable and necessary for treatment of Worker's CRPS condition." In his Memorandum Opinion, the WCJ elaborated: "[I]t is WCJ Skinner's opinion that treatment of Worker's CRPS should be under the direction of one HCP with experience and expertise related to CRPS. Simply put, it is WCJ Skinner's opinion that Dr. Rockwood lacks such experience and expertise. Treatment of Worker's CRPS condition should be under the direction of a pain management specialist such as Dr. Schwartz"; (6) With respect to Worker's mental condition, the WCJ approved as reasonable and necessary therapy sessions with Dr. Donovan and medication management with Dr. Guillen; (7) Pursuant to the AMA Guides Sixth Edition, Workerhas a 7% lower extremity impairment as a result of the CRPS; based on the AMA Guides Sixth Edition, the WCJ found no whole person impairment resulting from Worker's physical condition; on the basis of this impairment rating, the WCJ concluded that as of September 29, 2015, Worker was entitled to 50% loss of use benefits for 35 weeks pursuant to Section 52-1-43(A)(33); and (8) As of September 29, 2015, Worker suffered from a 20% mental impairment due to a combination of work-related and pre-existing non-work-related mental illness. On this basis, and in accordance with Section 52-1-26, for his secondary mental impairment Worker was entitled to 84% permanent partial disability benefits for 100 weeks pursuant to Section 52-1-42(A)(4) (1990).

DISCUSSION

A. The WCJ Did Not Err in Awarding Worker Only 100 Weeks of Permanent Partial Disability Benefits for His Secondary Mental Impairment

{5} Worker argues that, because the WCJ determined that he was entitled to 84% PPD benefits for his mental impairment, pursuant to Section 52-1-42(A)(1), he should have been awarded those benefits for 700 weeks. He further argues that the WCJ erred in limiting those benefits to 100 weeks on the basis of Section 52-1-42(A)(4) (1990), given that Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, 138 N.M. 331, 120 P.3d 413, held that statute unconstitutional because it discriminated against persons with disabilities stemming from mental as opposed to physical impairments. "We reviewthe WCJ's application of the law to the facts . . . de novo." Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320.

{6} Sections 52-1-42 and 52-1-43 specify the duration of the benefit payment that a worker who has sustained a compensable injury and resulting PPD¹ is entitled to receive. If a worker has been disabled as a result of an injury to any of the body members listed in Section 52-1-43, he or she will receive the number of weeks (between 7 and 200) of benefits set forth in that statute that correspond to the specific injured body member. Section 52-1-42 addresses the duration of benefits a worker with a permanent partial disability will receive if the benefits are not covered by Section 52-1-43. Section 52-1-42(A)(1) provides that, if the percentage partial disability, as determined pursuant to the provisions of Sections 52-1-26 to -26.4, is equal to or greater than 80%, the worker will receive benefits for up to 700 weeks; Section 52-1-42(A)(2) provides that, if the percentage partial disability is less than 80%, the worker will receive benefits for up to 500 weeks.

{7} Section 52-1-42(A)(3), (4), however, specifically address the duration of the benefits that a worker who is disabled as a result of a mental impairment will receive. These provisions were amended by our Legislature in 2015. See 2015 N.M. Laws, ch. 70, § 2. Prior to that date, they provided as follows:

(3) where the partial disability results from a primary mental impairment, the maximum period [of benefits] is one hundred weeks; and

(4) where the partial disability results from a secondary mental impairment, the maximum period is the maximum period allowable for the disability produced by the physical impairment or one hundred weeks, whichever is greater.

Section 52-1-42(A)(3), (4) (1990) (emphasis added). A "primary mental impairment" is "a mental illness arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances[.]" Section 52-1-24(B) (1990). A "secondary mental impairment" is "a mental illness resulting from a physical impairment caused by an accidental injury arising out of and in the course of employment." Section 52-1-24(C). Thus, a "secondary mental impairment occurs where physical injury did cause the mental impairment. . . . [while] a primary mental impairment . . . occurs as a result of the traumatic event regardless of the presence of any physical injury." Chavez v. Mountain States Constructors, 1996-NMSC-070, ¶ 44, 122 N.M. 579, 929 P.2d 971 (emphasis omitted).

{8} In Breen, two workers suffered temporary total primary mental impairments. 2005-NMSC-028, ¶ 1. They had been disabled for over 240 weeks. However, becauseof the cap on benefits for total disability stemming from a primary mental impairment set forth in Section 52-1-41(B) (1999), the workers were awarded only 100 weeks of benefits.² Breen, 2005-NMSC-028, ¶ 4. The workers claimed that the Act violated their equal protection rights under the United States and New Mexico constitutions, "because it caps all forms of compensation for persons with primary mental impairments at 100 weeks, while allowing substantially more compensation for persons with...