(dissenting).
Because I am unable to agree with the majority’s holding on the second issue, I respectfully dissent. I have no disagreement regarding the discussion and disposition on the first issue. Under my analysis of the second issue, I would reverse and direct the workers’ compensation«judge (judge) to reinstate his earlier decision limiting Claimant to 100 weeks of disability.
Based on the judge’s findings of fact and a review of the evidence, we are presented with the following circumstances. Claimant suffered an accidental injury in the •course and the scope of his employment on February 22, 1989. As a result, he initially suffered a cervical and thoracolumbar strain. This physical injury resolved itself by October 1990. Claimant also developed a mental condition as a result of the physical injury.
Claimant was diagnosed as suffering from fibromyalgia syndrome, which is a form of chronic pain syndrome. The judge found, as well as concluded, that Claimant at the time was totally disabled “as a result of his combined mental and physical condition” and that in six months after therapy he would be 25% permanently disabled. Respondents received credit for 100 weeks of disability payments at the maximum rate. There appears to be no disagreement that, at the time of the hearing, Claimant continued to have an impairment resulting from his physical injury and a disability resulting from his secondary mental impairment. By combining the two, the judge extended compensation benefits beyond that allowed by statute.
Because Finding of Fact No. 20 is critical to the analysis, I set it out in full.
Subsequent to the date of the industrial accident, Claimant has been able to work at least at a medium physical demand level on a full-time basis, with a lifting restriction of 30 pounds, avoidance of repeated bending, and avoidance of any activities that require repeated trunk twisting. The restrictions are based solely upon Claimant’s subjective complaints of pain (which is a function of a somatoform pain disorder or secondary mental impairment) rather than upon any physical findings. (Emphasis added.)
NMSA 1978, Section 52-1-42 (Repl.Pamp.1987), provides in pertinent part:
The duration of partial disability benefits shall in no event be longer than five hundred weeks except for partial disability resulting from:
(2) secondary mental impairment in which case the maximum period is the maximum period allowable for the disability produced by the physical impairment or one hundred weeks, whichever is greater. (Emphasis added.)
The language of this statute is plain and unambiguous. See Southern Union Gas Co. v. New Mexico Pub. Serv. Comm’n, 82 N.M. 405, 407, 482 P.2d 913, 915 (1971) (where statute’s terms plain and unambiguous, construction not allowed), overruled on other grounds by De Vargas Savs. & Loan Ass’n v. Campbell, 87 N.M. 469, 473, 535 P.2d 1320, 1324 (1975). The duration of partial disability benefits shall not exceed 500 weeks, unless Claimant has a partial disability resulting from a secondary mental impairment. In such a case, the maximum period is the greater of either the maximum period allowable “for the disability produced by the physical impairment” or 100 weeks. Thus, unless Claimant has a partial disability resulting from a physical impairment, he is limited to 100 weeks for his partial disability resulting from secondary mental impairment.
Under Finding of Fact No. 20, the judge found that Claimant had been able to work with certain restrictions on his activities. Those restrictions, according to the judge’s finding, were based solely on Claimant’s subjective complaints of pain rather than upon any physical findings. The majority circumvents this finding by melding the physical impairment with the partial disability resulting from the secondary mental impairment. I believe that this is incorrect and not only violates the plain language of the statute, but also defeats the legislative purpose.
Section 52-1-42 speaks in terms of disability, not impairment. Claimant here does not have a disability resulting from his physical injury, he only has a continuing impairment. An impairment is not compensable unless it results in a disability. See NMSA 1978, § 52-1-26 (Repl.Pamp.1987) (partial disability); Cardenas v. United Nuclear Homestake Partners, 97 N.M. 46, 49, 636 P.2d 317, 320 (Ct.App.1981) (to be entitled to benefits, worker must not only suffer physical impairment, but also must be unable to work); Pacheco v. Springer Corp., 83 N.M. 622, 623, 495 P.2d 800, 801 (Ct.App.1972) (“To entitle an injured workman to compensation, impairment is not enough; there must be disability.”). Claimant did have a secondary mental impairment resulting in a disability— total at the time of the hearing and 25% after six months of therapy. Since, under Finding No. 20, his disability was attributable solely to the secondary mental impairment and since there is no disability attributable to the physical impairment, Claimant is restricted to 100 weeks of compensation benefits.
While it is correct that Claimant may have been totally disabled as a result of “his combined mental and physical condition,” a fair reading of the judge’s entire decision makes clear that the determination of disability results from the mental condition, not the physical one. Combining the two, without requiring that an identifiable disability specifically result from the physical injury, ignores the plain meaning of the statute and produces an anomalous result. It cannot be seriously argued that the physical condition produced a disability; substantial evidence ■ would not support such a finding. The majority’s reliance on Dr. Lopez’s notes ignores the doctor’s deposition testimony indicating that Claimant’s disability was not causally connected to his physical impairment. Dr. Jones’s testimony also clearly indicates that Claimant’s mental condition, not his physical condition, was the cause of his disability. I also find unpersuasive the majority’s attempt to buttress its substantial-evidence analysis. First, this case does not implicate the expert medical testimony rule. Rather, Claimant simply failed to establish that his disability continued to be causally connected to his physical condition. Second, the inference “that the Claimant’s current disability was produced by the continuing physical impairment” simply cannot be strengthened by the fact that “Claimant’s pain syndrome arose out of his physical injury.” To allow this sort of bolstering would also be to allow complete circumvention of the purpose of Section 52-1-42 because, as discussed below, secondary mental impairments (here, pain syndrome) always arise from physical impairments (here, a back injury).
Additionally, Claimant does not appear to disagree. He argues for continuation of benefits beyond the 100 weeks based on physical impairment alone. This is not the test.
By definition, “ ‘secondary mental impairment’ means a mental illness resulting from a physical impairment caused by an accidental injury arising out of and in the course of employment.” NMSA 1978, § 52-1-24 (Repl.Pamp.1987). Thus, a secondary mental impairment, when present, always arises from a physical impairment. However, in order to be compensable, the secondary mental impairment must result in a disability. See § 52-1-42. The limit on that disability is 100 weeks. See id. To allow benefits to continue beyond the 100 weeks by grafting partial disability resulting solely from a secondary mental impairment onto a physical impairment which produces no disability virtually eliminates the 100-week limitation.
Here, we do not have a physical disability, only a noncompensable impairment resulting from a physical injury. That being the case, Claimant is limited to the 100 weeks of benefits for the disability resulting from the secondary mental impairment. To hold otherwise renders the statute meaningless in many situations because secondary mental impairments always arise from physical impairments and can continue to be associated with physical impairments even after the physical impairments cease to be disabling (as demonstrated in this case).
It seems clear that the legislature, in enacting Section 52-1-42 and other relevant provisions, was attempting to place a time limitation on disabilities resulting from mental conditions. In effect, it was restricting the previous compensability of such injuries. See, e.g., Candelaria v. General Elec. Co., 105 N.M. 167, 730 P.2d 470 (Ct.App.) (psychological disability caused by stress arising out of and in course of employment held compensable), cert. quashed, 105 N.M. 111, 729 P.2d 1365 (1986). By allowing a physical impairment to carry a disability resulting from a secondary mental impairment beyond the 100-week limitation, the majority, in my view, denies the legislature its prerogative to fix limitations.
Recently, this Court had an opportunity to examine NMSA 1978, Section 52-l-41(A) (Repl.Pamp.1987), which deals with total disability, and it is almost identical to Section 52-1-42, which deals with partial disability. In Fitzgerald v. Open Hands, 115 N.M. 210, 848 P.2d 1137 (Ct.App.1998), we reversed a finding by the workers’ compensation judge that the worker was totally and permanently disabled solely from her secondary mental impairment. In that case, the worker’s physical disability ended on March 15, 1991, so that at the time of the hearing the worker’s disability was solely attributable to the secondary mental impairment. We adopted the employer’s position that “Section 52-l-41(A)(2) allows compensation payments for as long as the physical disability is present; if the physical disability lasts less than 100 weeks, then a person who is totally disabled by secondary mental impairment can receive compensation payments for the balance of the 100 weeks and no more.” Id. at 213, 848 P.2d at 1140. We should apply an extension of that reasoning here. Fitzgerald teaches that in cases of this nature, the workers’ compensation judges must first determine the maximum period allowable for a worker’s disability produced by the physical impairment. Once that is done, Fitzgerald suggests that if that period is less than 100 weeks and the worker has a disability resulting from a secondary mental impairment which outlasts the physical disability, then he or she should receive compensation benefits for the duration of the mental disability, up to 100 weeks. By logical extension, only if the worker has a disability resulting from a physical impairment which lasts beyond 100 weeks should benefits continue for more than 100 weeks and for as long as the physical disability continues.
In Fitzgerald, not only did the worker have no disability resulting from a physical impairment, she no longer had a physical impairment. The majority opinion in the present case allows for the continuation of partial disability benefits as long as there is a physical impairment. One must conclude that this case will be read as distinguishable because Claimant here does have an ongoing physical impairment. I would agree with this distinction if Section 52-1-42 spoke in terms of impairment. It does not; it requires disability. See State v. Herrera, 86 N.M. 224, 522 P.2d 76 (1974) (courts must not construe statutes to achieve absurd results or to defeat intended legislative objectives).
Physical impairment gives birth to secondary mental impairment; mere physical impairment does not, however, carry compensation benefits for a disability resulting solely from that mental condition beyond 100 weeks. Only a physical disability can exceed the 100 weeks. The majority holding otherwise, I dissent.