Fowler v. Vista Care

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:56:32 2013.03.13
Certiorari Granted, March 1, 2013, No. 33,993

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-036

Filing Date: December 13, 2012

Docket No. 31,438

SHERRIE FOWLER,

Worker-Appellee,

v.

VISTA CARE and
AMERICAN HOME INSURANCE COMPANY,

Employer/Insurer-Appellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Victor S. Lopez, Workers’ Compensation Judge

Dunn Law Offices
Rod Dunn
Albuquerque, NM

for Appellee

Butt Thornton & Baehr PC
Emily A. Franke
David N. Whitham
Albuquerque, NM

for Appellants

OPINION

WECHSLER, Judge.

{1} Vista Care and American Home Insurance Co. (Vista Care) appeal from a
compensation order entered in the Workers’ Compensation Administration (WCA) awarding
Sherrie Fowler (Worker) temporary total disability benefits. We consider various provisions

1
of the Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended
through 2007), in determining whether (1) temporary total disability benefits are subject to
a durational limit, (2) a previous determination that a worker is at maximum medical
improvement precludes a finding that the worker was no longer at maximum medical
improvement at a later date, and (3) Vista Care is entitled to a credit against the temporary
total disability benefits for previously paid lump sum payments for future permanent partial
disability benefits. We hold that (1) temporary total disability benefits are subject to the
700-week durational limit found in Section 52-1-47(A); (2) the Workers’ Compensation
Judge (WCJ) did not err in concluding that Worker was not at maximum medical
improvement on March 14, 2007, despite a previous finding of maximum medical
improvement; and (3) on remand, the WCJ should consider how the 700-week limitation
period affects the application of any potential credit for lump sum advances of permanent
partial disability benefits. Accordingly, we reverse in part and affirm in part, and we remand
to the WCA for further proceedings consistent with this opinion.

BACKGROUND

{2} On April 7, 2003, Worker suffered a back injury arising out of, and occurring in the
course of, her employment with Vista Care. As a result of her injury, Worker underwent a
spinal fusion in October 2003. Thereafter, Worker continued to receive medical care,
including multiple spinal surgeries. On January 11, 2006, Dr. James Thomas found that
Worker had reached maximum medical improvement. As a result, Worker filed a petition
for a lump sum payment of permanent partial disability benefits for payment of debt,
pursuant to NMSA 1978, Section 52-5-12(C) (2009). The WCJ granted the petition on April
27, 2006, finding that Worker had reached maximum medical improvement prior to April
27, 2006.

{3} Worker continued to receive treatment on her injured back and, on February 7, 2007,
Dr. Andrew Cash examined Worker. Dr. Cash’s evaluation revealed that Worker suffered
from an adjacent level breakdown and stenosis and recommended that Worker undergo an
extension of the previous fusion with decompression. Worker saw Dr. Cash again on March
14, 2007, and Dr. Cash recommended an anterior-posterior lumbar fusion of L3-4. After the
parties disagreed whether the treatment suggested by Dr. Cash related to the original injury,
Dr. Jose Reyna provided an independent medical evaluation on October 22, 2009, and
concluded that the new injury related to the original injury and that Worker would benefit
from the additional treatment suggested by Dr. Cash. Worker underwent the surgery on July
13, 2010. The parties have stipulated that Worker has yet to reach maximum medical
improvement following the July 13, 2010 surgery.

{4} In the compensation order entered on June 30, 2011 that is the subject of this appeal,
the WCJ concluded that Worker was no longer at maximum medical improvement as of
March 14, 2007. The WCJ awarded temporary total disability to Worker beginning March
14, 2007, the date at which the WCJ determined that Worker was no longer at maximum
medical improvement, through the date Worker reaches maximum medical improvement

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from the July 13, 2010 surgery. The WCJ further concluded that the temporary total
disability benefits were not subject to the 500- or 700-week durational limit found in Section
52-1-42(A), and, therefore, Worker could be paid benefits for an indefinite period of time.
Finally, the WCJ concluded that Vista Care was not entitled to a credit for the lump sum
advances of permanent partial disability benefits to apply to the temporary total disability
benefits it awarded.

{5} On appeal, Vista Care argues that the WCJ (1) erred in holding that temporary total
disability benefits are not subject to the 500- or 700-week limit in Section 52-1-42(A) or the
700-week limit found in Section 52-1-47(A) and can potentially be payable for Worker’s
lifetime; (2) erred in concluding that Worker was no longer at maximum medical
improvement as of March 14, 2007, despite finding that Worker was at maximum medical
improvement on January 11, 2006; and (3) abused his discretion in holding that Vista Care
is not entitled to a credit for the lump sum advances of future payments for permanent partial
disability benefits when applied to the additional temporary total disability benefits.

STANDARD OF REVIEW

{6} “All workers’ compensation cases are reviewed under a whole record standard of
review.” Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926.
When our review consists of reviewing a “WCJ’s interpretation of statutory requirements,
we apply a de novo standard of review.” DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032,
¶ 14, 146 N.M. 453, 212 P.3d 341. “We look first to the plain meaning of the statute’s
words, and we construe the provisions of the [Workers’ Compensation] Act together to
produce a harmonious whole. After we determine the meaning of the statutes, we review the
whole record to determine whether the WCJ’s findings and award are supported by
substantial evidence.” Id. (internal quotation marks and citation omitted). “When an agency
that is governed by a particular statute construes or applies that statute, the court will begin
by according some deference to the agency’s interpretation.” Morningstar Water Users
Ass’n v. N.M. Pub. Util. Comm’n, 120 N.M. 579, 583, 904 P.2d 28, 32 (1995). However, we
are not bound by the agency’s interpretation and may substitute our “own independent
judgment for that of the agency because it is the function of the courts to interpret the law.”
Id.

TEMPORARY TOTAL DISABILITY BENEFIT DURATION LIMITS

{7} As pertinent to this appeal, the Workers’ Compensation Act provides for
compensation benefits for permanent partial disability in Section 52-1-42 and for total
disability in Section 52-1-41. Both sections contain limits on the duration of the benefits.

{8} In relevant part, Section 52-1-42(A) states that:

For permanent partial disability . . . [t]he duration of partial disability
benefits shall depend upon the extent and nature of the partial disability,

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 subject to the following:

(1) where the worker’s percentage of disability is equal to
or greater than eighty, the maximum period is seven hundred weeks;

(2) where the worker’s percentage of disability is less than
eighty, the maximum period is five hundred weeks[.]

Section 52-1-41(A) provides that, with exceptions that are not relevant to this appeal, for
total disability, a “worker shall receive compensation benefits for the remainder of his life.”

{9} In addition to these limitation provisions stated together with specific types of
benefits, the Workers’ Compensation Act contains a general provision concerning the
limitation of compensation benefits. Section 52-1-47 provides in relevant part

except for provision of lifetime benefits for total disability awarded pursuant
to Section 52-1-41 . . . :

A. compensation benefits for any combination of disabilities or
any combination of disabilities and death shall not be payable for a period in
excess of seven hundred weeks[.]

{10} The WCJ relied on Section 52-1-41(A) for the proposition that the temporary total
disability benefits are potentially subject to payment over Worker’s lifetime. The WCJ
determined that Section 52-1-41(A) clearly and unambiguously applies to both permanent
and temporary “total disability.” In the WCJ’s view, the “generic” term “total disability”
encompasses both “the temporary and permanent components of the category.”

{11} In its entirety, Section 52-1-41(A) provides:

For total disability, the worker shall receive, during the period of that
disability, sixty-six and two-thirds percent of his average weekly wage, and
not to exceed a maximum compensation of eighty-five percent of the average
weekly wage in the state, a week, effective July 1, 1987 through December
31, 1999, and thereafter not to exceed a maximum compensation of one
hundred percent of the average weekly wage in the state, a week; and to be
not less than a minimum compensation of thirty-six dollars ($36.00) a week.
Except as provided in Subsections B and C of this section, the worker shall
receive compensation benefits for the remainder of his life.

{12} The first sentence of Section 52-1-41(A) establishes the formula to set the amount
of compensation benefits that a worker may receive for total disability “during the period
of that disability.” (Emphasis added.) The formula is used to calculate temporary total
disability as well as permanent total disability benefits. Cf. Breen v. Carlsbad Mun. Sch.,

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2005-NMSC-028, ¶ 1, 138 N.M. 331, 120 P.3d 413 (reviewing a case in which the worker
received benefits under Section 52-1-41(A) for an injury resulting in a temporary total
disability). By the express language of the statute, it applies only for benefits during the
period of the disability. Section 52-1-41(A). The second sentence, on the other hand, states
that, with exceptions for mental impairment and death, the worker is entitled to receive
compensation benefits “for the remainder of his life.” Section 52-1-41(A). Because this
sentence is contained in Section 52-1-41(A) that begins “[f]or total disability,” we presume
that it relates to “total disability” and means that a worker shall receive compensation
benefits for total disability for the remainder of the worker’s life. See Reule Sun Corp. v.
Valles, 2010-NMSC-004, ¶ 30, 147 N.M. 512, 226 P.3d 611 (stating that the placement of
language at the beginning of a clause evinces legislative intent that the clause is meant to
apply to the statute in whole). Nothing in Section 52-1-41(A) explains the connection
between a worker’s entitlement to receive the compensation benefits calculated in the first
sentence of Section 52-1-41(A) for the period of the total disability and the worker’s
entitlement in the second sentence to receive compensation benefits for a total disability for
the remainder of the worker’s life. The language providing “benefits for the remainder of
his life” in the second sentence is inconsistent with temporary total disability, which by
definition is temporary and contemplates a worker reaching maximum medical improvement
and returning to work. See § 52-1-25.1(A), (B); see also Madrid v. St. Joseph Hosp., 1996-
NMSC-064, ¶ 7, 122 N.M. 524, 928 P.2d 250 (“Eligibility for the various temporary benefits
provided under the Act ends at the date of [maximum medical improvement].”). Due to this
ambiguity, we focus our construction of Section 52-1-41(A) outside the plain meaning,
focusing on the purpose of the Workers’ Compensation Act. See T-N-T Taxi, Ltd. v. N.M.
Pub. Regulation Comm’n, 2006-NMSC-016, ¶ 5, 139 N.M. 550, 135 P.3d 814 (“[S]tatutes
are given effect as written without room for construction unless the language is doubtful,
ambiguous, or adherence to the literal use of the words would lead to injustice, absurdity or
contradiction, in which case the statute is to be construed according to its obvious
purpose.”).

{13} We interpret statutes to fulfill the intent of the Legislature. Vescio v. Wolf, 2009-
NMCA-129, ¶ 13, 147 N.M. 374, 223 P.3d 371. By enacting the Workers’ Compensation
Act, the Legislature intended “to protect injured workers from becoming dependent on
public welfare and to provide them with some financial security.” Madrid, 1996-NMSC-
064, ¶ 8. To achieve this purpose, the Workers’ Compensation Act sets forth grades of
disability. Thus, a permanent total disability is either (1) the permanent and total loss or loss
of use of both hands, arms, feet, legs, or eyes, or any two of them, or (2) a traumatic brain
injury causing a certain degree of permanent impairment. Section 52-1-25. A permanent
partial disability is a permanent impairment. Section 52-1-26(B). Further, workers with a
compensable permanent partial disability “should be provided with the opportunity to return
to gainful employment as soon as possible with minimal dependence on compensation
awards.” Section 52-1-26(A).

{14} The Workers’ Compensation Act therefore draws a sharp distinction between
permanent total disability and permanent partial disability. It does not contemplate that

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workers suffering a compensable permanent total disability must return to work. To this
end, workers with a permanent total disability receive lifetime compensation benefits.
Section 52-1-41(A). A permanent partial disability, on the other hand, justifies only the
maximum of 500 or 700 weeks of compensation benefits in accordance with the legislative
purpose of minimal dependence on compensation awards. Section 52-1-42(A)(1), (2).

{15} In addition, the Workers’ Compensation Act ties a worker’s entitlement to permanent
partial disability benefits and temporary total disability benefits to the worker’s achieving
maximum medical improvement. Section 52-1-24(A) defines “impairment” as “an
anatomical or functional abnormality existing after the date of maximum medical
improvement.” Further, temporary total disability is defined in relation to maximum medical
improvement. It is “the inability of a worker, by reason of accidental injury arising out of
and in the course of the worker’s employment, to perform the duties of that employment
prior to the date of the worker’s maximum medical improvement.” Section 52-1-25.1(A).
A worker is entitled to receive temporary total disability benefits if the worker is released
to work prior to reaching maximum medical improvement and returns to work at less than
the worker’s pre-injury wage. Section 52-1-25.1(C).

{16} This legislative scheme of the Workers’ Compensation Act resolves the issue before
us. See DeWitt, 2009-NMSC-032, ¶ 14. Although the Legislature used the word “total”
with respect to temporary total disability, it did not equate it with the “total disability” that
entitles a worker to benefits for the worker’s remaining life. Because a designation of
temporary total disability contemplates that the worker will reach maximum medical
improvement and return to work, it would be inconsistent for the Legislature to have
intended that workers receiving temporary total disability benefits be paid for the remainder
of the worker’s life. Such an interpretation is inconsistent with the statutory scheme of being
able to return to work “with minimal dependence on compensation awards.” Section 52-1-
26(A). Indeed, this inconsistency is underscored by the temporary nature of temporary total
disability benefits that are subject to a subsequent determination of maximum medical
improvement. See Montoya v. Herrera, 2012-NMSC-011, ¶ 11, 276 P.3d 952 (“We must
take care to avoid adoption of a construction that would render the statute’s application
absurd or unreasonable or lead to injustice or contradiction.” (internal quotation marks and
citation omitted)). Although Section 52-1-41(A) does not specifically make reference to
permanent total disability in Section 52-1-25, when we “construe the provisions of the
[Workers’ Compensation] Act together to produce a harmonious whole[,]” DeWitt, 2009-
NMSC-032, ¶ 14, we understand Section 52-1-41(A) to refer only to a permanent total
disability under Section 52-1-25. In that manner, Section 52-1-41(A) fulfills the purpose of
the Workers’ Compensation Act of providing permanent financial security to an injured
worker who requires a permanent source of income for the worker’s lifetime.

{17} The WCJ determined, and Worker argues, that the Legislature intended temporary
total disability benefits to “be limited only by the spigot of medical judgment that a worker
is, or is no longer, at [maximum medical improvement] status.” Under this approach, we
would have to read the language providing “benefits for the remainder of his life” in Section

6
52-1-41(A) to mean that payment of total disability benefits is periodic and indefinite in
duration over the remainder of the worker’s lifetime and is dependent solely on whether
worker has reached maximum medical improvement and is entitled to either permanent total
disability or permanent temporary disability. Had the Legislature intended this approach,
the Legislature would have used clearer language and not provided benefits for the
“remainder of [a worker’s] life[,]” language that implies continuing benefits until death. See
Colonias Dev. Council v. Rhino Envtl. Servs., Inc., 2003-NMCA-141, ¶ 17, 134 N.M. 637,
81 P.3d 580 (stating that the Legislature would have provided a much “clearer indication”
if it had intended a statute to a more expansive meaning), rev’d on other grounds, 2005-
NMSC-024, 138 N.M. 133, 117 P.3d 939; Webster’s Third New International Dictionary
1919 (Unabridged 1993) (defining “remainder” as “ a remaining group, part, or trace” and
“remain” as “to continue unchanged in form, condition, status, or quantity”). A more natural
reading of Section 52-1-41(A) is that the Legislature specifically used the phrase providing
“benefits for the remainder of his life” for the specific purpose of providing lifetime benefits
exclusively for permanent total disability.

{18} Moreover, at least one issue before the Court is whether to apply the durational limit
contained in Section 52-1-47(A) to temporary total disability benefits. Section 52-1-47
expressly provides an exception for lifetime benefits awarded under Section 52-1-41(A).
By the plain language of Section 52-1-41(A), such lifetime benefits are benefits that a
worker receives for the remainder of the worker’s life. As we have stated, temporary total
disability benefits, by their temporary nature, do not continue for a worker’s lifetime.

{19} Because the exception of Section 52-1-41(A) does not apply for temporary total
disability benefits, we must determine the applicable durational limits for temporary total
disability benefits. We turn first to Section 52-1-42. Section 52-1-42(A)(1), (2) provides
a 500- or 700-week duration limit, but it applies only to permanent partial disability, and
temporary total disability is neither “permanent” nor “partial.” See § 52-1-25.1. However,
Section 52-1-42(B) remains relevant. It states:

If an injured worker receives temporary total disability benefits prior
to an award of partial disability benefits, the maximum period for partial
disability benefits shall be reduced by the number of weeks the worker
actually receives temporary total disability benefits.

{20} Through Section 52-1-42(B), the Legislature has demonstrated its intent that
temporary total disability benefits are not excepted from the durational limits for permanent
partial benefits. Indeed, by its plain language, Section 52-1-42(B) requires temporary total
disability benefits to be included in the calculation of the durational limits of subsequent
permanent partial benefits. As we have discussed, the design of the Workers’ Compensation
Act is that an injured worker will receive temporary total disability benefits until the worker
has reached maximum medical improvement and receives permanent partial disability
benefits. Sections 52-1-25.1, -26.

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{21} We acknowledge that there may be situations in which a worker receives permanent
partial disability benefits and subsequently aggravates the injury and qualifies for temporary
total disability only to not receive benefits because the worker exhausted the durational limit
for permanent partial disability. Although the Workers’ Compensation Act is intended to
protect injured workers and provide financial security, Madrid, 1996-NMSC-064, ¶ 8, this
result is a legislative decision striking a balance between the interests of the employer and
the worker. See NMSA 1978, § 52-5-1 (1990) (“It is the intent of the [L]egislature [that the
Workers’ Compensation Act] be interpreted to assure the quick and efficient delivery of
indemnity and medical benefits to injured and disabled workers at a reasonable cost to the
employers . . . based on a mutual renunciation of common law rights.”).

{22} We next turn to Section 52-1-47(A). Except for the lifetime benefits provision set
forth in Section 52-1-41(A), Section 52-1-47(A) provides a 700-week limit for
“compensation benefits for any combination of disabilities.” (Emphasis added.) The plain
language of Section 52-1-47(A) evinces a legislative intent to provide an absolute limit of
700 weeks for “any” compensation benefits awarded under the Worker’s Compensation Act,
except for lifetime benefits set forth in Section 52-1-41(A). We have determined that
Section 52-1-41(A) does not apply to temporary total disability. Thus, because temporary
total disability does not fall within the Section 52-1-41(A) lifetime benefits exception, the
700-week durational limit of Section 52-1-47(A) applies to temporary total disability
benefits. Although Worker argues that Section 52-1-47(A) contemplates a combination of
compensation benefits that does not include temporary total disability benefits, Section 52-1-
47(A) limits to 700 weeks “compensation benefits for any combination of disabilities”
without any exception other than for lifetime benefits.

{23} In sum, the WCJ erred in holding that the temporary total disability benefits awarded
to Worker were subject to payment over an indefinite duration pursuant to Section 52-1-
41(A). The temporary total disability benefits are subject to the 700- week durational limit
in Section 52-1-47(A). We therefore reverse the WCJ on this issue.

CHANGED MAXIMUM MEDICAL IMPROVEMENT STATUS

{24} Vista Care next argues that the WCJ erred in concluding that Worker was no longer
at maximum medical improvement as of March 14, 2007, even though the WCJ had
previously determined that Worker was at maximum medical improvement prior to April 27,
2006. Particularly, Vista Care argues that Worker’s prior admission that she was at
maximum medical improvement when applying for lump sum payments precluded the WCJ
from determining that Worker was no longer at maximum medical improvement as of the
date that Dr. Cash recommended that Worker undergo the anterior-posterior lumbar fusion
of L3-4.

{25} The date of maximum medical improvement is defined as “the date after which
further recovery from or lasting improvement to an injury can no longer be reasonably
anticipated based upon reasonable medical probability as determined by a health care

8
provider.” Section 52-1-24.1. The Workers’ Compensation Act provides for the
modification of a compensation order. In relevant part, NMSA 1978, Section 52-5-9 (1989)
provides that

A. Compensation orders are reviewable subject to the conditions
stated in this section upon application of any party in interest in accordance
with the procedures relating to hearings. The [WCJ], after a hearing, may
issue a compensation order to terminate, continue, reinstate, increase,
decrease or otherwise properly affect compensation benefits provided by the
Workers’ Compensation Act . . . .

B. A review may be obtained upon application of a party in
interest filed with the director at any time within two years after the date of
the last payment or the denial of benefits upon the following grounds:

(1) change in condition[.]

Further, Section 52-1-56 provides that

The [WCJ] may, upon the application of the employer, worker or
other person bound by the compensation order, fix a time and place for
hearing upon the issue of claimant’s recovery. . . . If it appears upon such
hearing that the disability of the worker has become more aggravated or has
increased without the fault of the worker, the [WCJ] shall order an increase
in the amount of compensation allowable as the facts may warrant.

{26} Under these statutory provisions, the WCJ had the authority to modify the maximum
medical improvement determination upon a change of condition if Worker’s injury became
aggravated or worsened to an extent that Worker was no longer at maximum medical
improvement. No statutory provision precludes such a modification because Worker
previously admitted to being at maximum medical improvement and requested lump sum
payment of benefits. Cf. Benny v. Moberg Welding, 2007-NMCA-124, ¶¶ 6-12, 142 N.M.
501, 167 P.3d 949 (holding that Section 52-5-9 and Section 52-1-56 provide authority for
the WCJ to grant temporary total disability benefits even after the worker received a lump
sum settlement for permanent partial disability benefits).

{27} Based on the evidence presented at trial, the WCJ concluded that “Worker’s spinal
condition slowly deteriorated and aggravated after her April 27, 2006 [maximum medical
improvement] date.” Further, the WCJ concluded that “March 14, 2007 was the clear date
on which Worker’s condition had changed sufficiently to warrant a recommendation for
scheduling of the surgical procedure” and therefore, “Worker was no longer at [maximum
medical improvement] status for her work injuries on March 14, 2007.” Vista Care does not
challenge the sufficiency of the evidence to support these findings, and the findings are
therefore binding on appeal. Rendleman v. Heinley, 2007-NMCA-009, ¶ 10, 140 N.M. 912,

9
149 P.3d 1009 (“An unchallenged finding is binding on appeal.”). The WCJ had the
authority to modify the designation that Worker was at maximum medical improvement and
find that Worker was no longer at maximum medical improvement as of March 14, 2007.

{28} Vista Care cites Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, 132
N.M. 608, 52 P.3d 980, disproved in part by Benny, 2007-NMCA-124, for the proposition
that “the need for and receipt of additional medical treatment does not alter the prior date and
finding that worker has reached [maximum medical improvement].” However, Souter dealt
with an inapposite issue. In Souter, this Court held that lump sum payments exhausting a
worker’s awarded permanent partial disability benefits did not preclude the worker from
petitioning for a modification of benefits for a change in condition as long as the worker
sought the modification during the statutory durational period beginning when the permanent
partial disability benefits were first awarded. Id. ¶¶ 18-22. Souter did not address a change
of a worker’s maximum medical improvement status or a worker’s maximum medical
improvement date and is not applicable to this case.

CREDIT FOR LUMP SUM ADVANCES

{29} Vista Care lastly argues that the WCJ erred in determining that Vista Care is not
entitled to a credit for its lump sum advances of future permanent partial disability benefits
applied to the awarded temporary total disability benefits. “New Mexico does not provide
a statutory section in the [Workers’] Compensation Act, which deals with the question of
overpayment of prejudgment compensation benefits.” Paternoster v. La Cuesta Cabinets,
Inc., 101 N.M. 773, 776, 689 P.2d 289, 292 (Ct. App. 1984) (citation omitted). Accordingly,
fundamental fairness, “which balances the compensation goals of the [Workers’
Compensation] Act against the principle of fundamental fairness toward the employer”
guides courts in determining whether and under what circumstances a credit for overpayment
will be permitted. Id. at 779, 689 P.2d at 295. We will not disturb a WCJ’s determination
concerning whether a credit applies absent an abuse of discretion. See id. (“[T]he [district]
court has discretion to make an award of credit which balances the compensation goals of
the [Workers’ Compensation] Act against the principle of fundamental fairness toward the
employer.”); West v. Home Care Res., 1999-NMCA-037, ¶ 13, 127 N.M. 78, 976 P.2d 1030
(Ct. App. 1999) (stating that review of the method for applying credit to a WCJ’s
determination is limited to whether the WCJ abused his or her discretion). “An abuse of
discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by
the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M.
618, 930 P.2d 153. “A [district] court abuses its discretion when it exercises its discretion
based on a misunderstanding of the law.” Chavez v. Lovelace Sandia Health Sys., Inc.,
2008-NMCA-104, ¶ 25, 144 N.M. 578, 189 P.3d 711.

{30} Vista Care paid $78,428.38 in lump sum advances for debt to Worker for future
permanent partial disability benefits, and, at the time the WCJ issued the compensation
order, Worker had been overpaid $12,038.90. The WCJ determined that, although Vista
Care was entitled to a credit for any weekly permanent partial disability or partial temporary

10
total disability payment made after March 14, 2007, Vista Care was not entitled to a credit
for the lump sum permanent partial disability advances as applied to the awarded temporary
total disability benefits because the advances were purely for permanent partial disability
benefits. The WCJ reached this conclusion that “credit issues are irrelevant to payment of
[temporary total disability] benefits because Worker may potentially receive such benefits
beyond [the] 500[-] or 700[-]week limits established under Section 52-1-42.”

{31} Apparently, the WCJ concluded that the credit issues were irrelevant to the payment
of temporary total disability benefits because “it is customary to apportion the credit for
lump-sum payments by shortening the number of weeks that compensation is paid; that is,
by applying the credit at the back-end of the weekly compensation award.” West, 1999-
NMCA-037, ¶ 13. Because credits are typically applied to the back-end of a compensation
award, the WCJ apparently concluded that a credit was not applicable in this case because
of the indefinite duration of the temporary total disability awarded. However, as we
concluded, Worker may not receive temporary total disability benefits beyond the 700-week
limit established in Section 52-1-47(A). On remand, the WCJ should consider how the 700-
week limitation period affects the application of any potential credit for lump sum advances
of permanent partial disability benefits.

CONCLUSION

{32} We hold that (1) temporary total disability benefits are subject to the 700-week
durational limitation found in Section 52-1-47(A); (2) the WCJ did not err in concluding that
Worker was not at maximum medical improvement on March 14, 2007, despite a previous
finding of maximum medical improvement; and (3) on remand, the WCJ should consider
how the 700-week limitation period affects the application of any potential credit for lump
sum advances of permanent partial disability benefits. Accordingly, we reverse in part and
affirm in part, and we remand to the WCA for further proceedings consistent with this
opinion.

{33} IT IS SO ORDERED.

____________________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
LINDA M. VANZI, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for Fowler v. Vista Care, No. 31,438

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APPEAL AND ERROR
Remand
Standard of Review

STATUTES
Interpretation
Legislative Intent
Rules of Construction

WORKERS COMPENSATION
Lump Sum Payment
Modification or Termination of Benefits
Time Limitations

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