(concurring in part, dissenting in part).
I agree that we must remand for further proceedings before the WCJ. I cannot, however, join in the analysis in the majority’s opinion, which does not pay proper deference to the statutory language of the Interim Act. Perhaps the result on remand reached under the analysis in this opinion would be the same as that reached under the majority opinion — I am not certain what the majority is instructing the WCJ to do on remand — but an analysis based on the statutory language should provide better guidance to the WCJ.
The starting point of my analysis is a description of the statutory scheme under the Interim Act. Because it is undisputed that Worker has been unable to perform her duties as a nurse’s aide, I will address only the provisions of the Act that apply to someone in that condition.
Under the Interim Act, the key date for a worker unable to perform the duties she had at the time of injury is the date of maximum medical improvement. Prior to that date the disabled worker suffers from “temporary total disability.” After the worker reaches maximum medical improvement, the worker is no longer entitled to temporary total disability benefits. The Interim Act states:
As used in the Workmen’s Compensation Act, “temporary total disability” means the inability of the workman, by reason of accidental injury arising out of and in the course of his employment, to perform his duties prior to the date of his maximum medical improvement.
NMSA 1978, § 52-1-26 (Cum.Supp.1986). Thus, contrary to what the majority opinion appears to say, vocational rehabilitation would not be a factor in determining when Worker’s temporary total disability ends. (The sole circumstance in which vocational rehabilitation might affect the period of temporary total disability would be when rehabilitation somehow enables a worker to perform her pre-injury duties prior to the time that she achieves maximum medical improvement. In that circumstance temporary total disability would end.)
Once the WCJ determines that a worker has reached maximum medical improvement, the WCJ then decides whether the worker is entitled to partial disability payments. The Interim Act defines partial disability as:
a permanent physical impairment to a workman resulting from an accidental injury arising out of and in the course of employment, whereby a workman has any anatomic or functional abnormality existing after the date of maximum medical improvement as determined by a medically or scientifically demonstrable finding as presented in the American medical association’s guides to the evaluation of permanent impairment, copyrighted 1984, 1977 or 1971, or comparable publications by the American medical association.
NMSA 1978, § 52-1-25 (Cum.Supp.1986). The measure of partial disability under the Interim Act is an objective finding based on the physical condition of the worker. Contrary to what the majority opinion appears to say, vocational rehabilitation has nothing to do with the measure of partial disability.
After deciding the extent of a worker’s partial disability, the WCJ then must determine whether the worker is entitled to benefits for permanent total disability. “Permanent total disability” is, in pertinent part, defined in the Interim Act as:
a permanent physical impairment to a workman resulting by reason of an accidental injury arising out of and in the course of employment whereby a workman is wholly unable to earn comparable wages or salary. In determining whether a workman is able to earn comparable wages and salary, the hearing officer shall consider the benefits the worker is entitled to receive under Section 52-1-43 NMSA 1978 [relating to benefits for partial disability]. If the benefits to which the workman is entitled under Section 52-1-43 NMSA 1978 and the wage he is able to earn after the date of maximum medical improvement and vocational rehabilitation as provided in this act is comparable to the wage the worker was earning when he was injured, he shall be deemed to be able to earn comparable wages or salary.
NMSA 1978, § 52-1-24(A) (Cum.Supp. 1986). It is important to note that a worker who is partially disabled may receive permanent total disability benefits for short periods of time. As this court stated in Gonzales v. Lovington Public Schools, 109 N.M. 365, 370, 785 P.2d 276, 281 (Ct.App.1989):
We do not read Section 52-1-24 as requiring the [WCJ] to fix only one status — either totally permanently disabled or not totally permanently disabled— from the date of maximum medical recovery; the hearing officer’s determination can provide for a change, or even multiple changes, in status.
For example, a worker who has reached maximum medical improvement and is partially disabled may be ineligible for permanent total disability benefits because the sum of the wages she is able to earn plus her partial disability benefits is comparable to her pre-injury wages. Yet if that worker is unable to earn comparable wages for a period of time because she is undergoing vocational rehabilitation or needs medical care that prevents her from working, she would be entitled to permanent total disability benefits during that period of time. Although it is tempting to say that the worker is “temporarily totally disabled” for limited periods during which she is entitled to benefits for permanent total disability, use of the phrase in that context can result in confusion because the Interim Act specifically defines “temporary total disability” as applying only to the period before maximum medical improvement. See § 52-1-26.
Turning to the present case, I would affirm the WCJ’s determination that Worker is not entitled to temporary total disability benefits after November 15, 1988. The WCJ was entitled to rule that Worker had reached maximum medical improvement by that date. Worker does not challenge the expert medical testimony that she had reached maximum medical improvement as to her back by November 16, 1988. The controversy concerning the date of her maximum medical improvement relates to her knee. The majority appears to suggest that Worker had not reached maximum medical improvement because she was undergoing physical therapy for her knee after November 15, 1988. This suggestion, however, overlooks Baca v. Bueno Foods, 108 N.M. 98, 100, 766 P.2d 1332, 1334 (Ct.App.1988), which held that “continuing treatment is consistent with maximum medical improvement if it produces improvement that is only symptomatic relief.”
More importantly, the WCJ’s finding on the date of maximum medical improvement has sufficient support in the record that it must be affirmed. To reach this conclusion requires further analysis of the meaning of “date of maximum medical improvement.” The Interim Act defines the “date of maximum medical improvement” 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.
NMSA 1978, § 52-1-27 (Cum.Supp.1986). It is essential to note that the statutory definition does not set the date of maximum medical improvement as the date at which the worker actually has reached maximum recovery. It is the first date at which the doctors think the worker has reached maximum recovery. The definition can be paraphrased to say that “the date of maximum medical improvement is the earliest date at which qualified medical experts examine the worker and conclude that further improvement is improbable.”
Perhaps the statutory definition could be read as saying that the date of maximum medical improvement is determined not solely on the basis of the medical information available at the purported date of maximum medical improvement but also on the basis of additional medical evidence available up to the time of the hearing on the matter. Under that interpretation a worker could be denied benefits for temporary total disability during a period when her prognosis was of continued improvement, if it later appears that the worker did not in fact improve. A doctor at the hearing on the claim for benefits could testify that even though a prognosis of further recovery on, say, January 1 had been based on reasonable medical probabilities, the evidence available at the time of hearing established that the worker had actually reached maximum recovery by January 1; as a result, temporary total disability had ended by January 1. Similarly, the period of temporary total disability could be extended if the worker, after a period of stability when the prognosis is of no further recovery, unexpectedly begins to improve.
I would reject that reading of Section 52-1-27. The statutory language “can no longer be reasonably anticipated” indicates that the anticipating is to be done at the date of maximum medical improvement. One does not “anticipate” the past. Anticipation is of future events. The words “no longer” imply that up to that date further improvement had been anticipated. If improvement had not been anticipated for a period of time prior to a particular date, then the date must be after the date of maximum medical improvement. Thus, the natural reading of the statutory language is that the date of maximum medical improvement is the date after which the medical evidence first indicates that further improvement is unlikely — i.e., the date after which improvement is no longer anticipated. The date of maximum medical improvement is, say, March 2, 1990, if an informed medical expert on March 3 would say, “It can no longer be reasonably anticipated that the injury will improve.”
This natural reading provides clearer guidance to the parties, reducing controversy and enabling the parties to go about fulfilling their obligations under the Interim Act. Errors in prognosis will be made. Workers may unexpectedly recover or fail to recover. But there is no need to modify the date of maximum medical improvement to deal with such eventualities, because the Interim Act is equipped to deal with them under the provisions for permanent disability. The degree of partial disability can be reevaluated; and benefits for permanent total disability can be awarded if later medical problems or treatment prevent the worker from earning wages. See Gonzales v. Lovington Pub. Sch.; § 52-5-9 (Cum.Supp.1986).
In this case the evidence indicates that by November 15,1988, Worker’s symptoms had been relatively stable for a long time. Dr. Davis’s office notes do not refer to Worker’s knee for more than a year before she complained of knee swelling on March 31, 1989. Worker’s claim filed on January 4, 1989, states that her “low back” was the part of the body injured; and the Recommended Resolution of the Workers’ Compensation Division mediator filed on February 20, 1989, recites that the parties stipulated that “[t]he injury sustained by [Worker] was of her back.” Hence, the WCJ could properly find that Worker reached maximum medical improvement by November 16, 1988, because as of that date there was no reason to anticipate further recovery of the knee injury. I would therefore affirm the WCJ’s determination of the date of maximum medical improvement.
Having fixed the date of maximum medical improvement, the WCJ then properly considered the extent of Worker’s partial disability. For the reasons stated in the majority opinion, I agree that the WCJ could properly find partial disability to be 15%.
The remaining question, then, is whether Worker was entitled for any period of time to permanent total disability benefits under Section 52-l-24(A). For the reasons stated in the majority opinion, I agree that the WCJ could properly find that Worker was capable of earning a comparable wage, at least for the great bulk of the pertinent period of time. The record does suggest, however, that Worker could be entitled to permanent total disability during two apparently brief periods of time.
First, Worker would not be able to work — and therefore could not earn a comparable wage — at the time of her operation and for a recovery period thereafter. The only basis for denying permanent total disability benefits during that period of time would be the failure of Worker to establish the length of that period. On this record, however, I cannot determine if the WCJ so ruled. Therefore, I would remand for pertinent findings and conclusions concerning Worker’s entitlement to permanent total disability benefits while she was physically incapable of working because of the problem with her knee and the treatment for the problem.
Second, the WCJ’s award of vocational rehabilitation benefits to Worker suggests that the WCJ found that Worker would not be able to obtain employment without professional help in applying for jobs and convincing employers of her capacities. Such professional help would probably not delay Worker’s entry into the job market to any significant extent. The problem here is that apparently Respondents did not offer such employment assistance prior to the WCJ’s order requiring such vocational rehabilitation. The failure to provide assistance raises both factual and legal questions. The factual questions arise because the record is unclear as to why Worker had not received job-placement benefits prior to the WCJ’s order. The legal questions arise because the Interim Act does not provide clear guidance on how Worker’s entitlement to benefits for permanent total disability would be affected by the reasons for her not receiving job-placement benefits. Our only reported decision touching on the subject states that a worker cannot prolong entitlement to permanent total disability by refusing vocational rehabilitation. Gonzales v. Lovington Public Schools. Beyond that, we may be left with no more guidance than the rule of “fundamental fairness” to which we have resorted in other circumstances in which the Workers’ Compensation Act does not provide an answer, see Paternoster v. La Cuesta Cabinets, 101 N.M. 773, 776, 689 P.2d 289, 292 (Ct.App.1984), although we should seek a result that encourages rehabilitation and a return to gainful employment, see Easterling v. Woodward Lumber Co., 112 N.M. 32, 35, 810 P.2d 1252, 1255 (Ct.App.1991). For example, if Worker had demanded job-placement assistance, Respondents had refused to provide such assistance, and Worker consequently was unable to obtain employment, then Respondents should be liable for permanent total disability benefits under Section 52-1-24 during the period of time that Respondents refused to provide the requested assistance. On the other hand, if Worker never requested job placement benefits and insisted that she was incapable of any work without further job training, then perhaps Respondents should not be penalized for failing to volunteer job-placement assistance. I would remand to the WCJ for further findings and conclusions relating to the delay in providing job-placement benefits and what, if any, award of permanent total disability benefits should be made as a result.
Finally, a word on attorney’s fees. Because Respondents did not cross-appeal on the matter of attorney’s fees, they are not entitled to any reduction in attorney’s fees on remand. It does not follow, however, that any addition to Worker’s disability benefits requires an increase in the award of attorney’s fees against Respondents. Respondents have argued on appeal that the WCJ incorrectly computed the award of attorney’s fees, resulting in an excessive award. I see no reason why those same arguments could not be used to try to persuade the WCJ that the award of attorney’s fees should not be increased even if there is an increase in the award of benefits.