(dissenting).
{52} I respectfully dissent. I would affirm the Court of Appeals, which held that the Workers had established neither a constitutional nor a statutory violation, see Breen v. Carlsbad Mun. Sch., 2003-NMCA-058, ¶ 1, 133 N.M. 618, 67 P.3d 908, and that the Workers’ Compensation Judge (WCJ) did not err in refusing to enforce the initial compensation orders after they were affirmed on appeal. Id. ¶ 6. In those orders, the WCJ had granted temporary total disability benefits pursuant to NMSA 1978, § 52-1-25.1 (1990), without limitation. In refusing to enforce those orders on remand, the WCJ effectively limited Workers to one hundred weeks of benefits, consistent with NMSA 1978, § 52-1-41 (B) (1999).
{53} In Section 52-1-25.1, which provides for temporary total disability, the Legislature did not limit the number of weeks a worker may receive benefits. Rather, the Legislature defined the term “temporary total disability” as “the inability of the worker, by reason of accidental injury arising out of and in the course of employment, to perform his [or her] duties prior to the date of his [or her] maximum medical improvement.” Section 52-l-25.1(A). The Legislature has defined “ ‘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 a reasonable medical probability.” NMSA 1978, § 52-1-24.1 (1990). The WCJ’s initial orders indicated that neither Worker had reached maximum medical improvement.
{54} The Court of Appeals reasoned that the WCJ did not err in limiting the awards to one hundred weeks, notwithstanding the absence of a limitation in Section 52-1-25.1, because Section 52-1-41(B) provides a maximum period of compensation of one hundred weeks. See Breen, 2003-NMCA-058, ¶ 6. The Court of Appeals described the statute as limiting “the period of compensation for total disability resulting from primary mental impairment.” Id. The Legislature applied the same limitation to compensation for permanent partial disability resulting from a primary mental impairment, see NMSA 1978, § 52-l-42(A)(3) (1990), and provided that this limitation includes compensation awarded for temporary total disability. Section 52-1-42(B). Workers’ arguments on appeal arise out of Section 52-1-25.1 but implicate both Sections 52-1-41(B) and 52-1-42(A)(3), although Workers actually challenge only the limitation on the number of weeks they are entitled to receive benefits for temporary total disability.
{55} Workers’ arguments on appeal do not distinguish the protection provided by the federal constitution from that provided by the state constitution. Workers also do not argue that they are part of a sensitive or suspect class. Under these circumstances, I would not attempt to distinguish the equal protection guaranteed by the New Mexico Constitution from that guaranteed by the federal constitution. Cf. State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (describing the analysis that is appropriate in interpreting the New Mexico constitution differently than the federal constitution).
{56} I do think it is difficult to determine how to analyze the statutes Workers challenge. It is difficult to determine whether we should view workers with primary mental impairments as similarly situated to workers with physical impairments, and it is difficult to determine whether the differences within the statutes reflect “subtle forms of unconstitutional discrimination created by unconscious or disguised prejudice.” See Maj. Op., ¶20. I am persuaded, however, that the differences serve an important and legitimate governmental interest and that the WCJ properly applied the law to the facts.
{57} The Legislature has created a scheme of workers’ compensation that classifies most work-related injuries by the degree of impairment. The Legislature has defined impairment as “an anatomical or functional abnormality existing after the date of maximum medical improvement as determined by a medically or scientifically demonstrable finding and based upon the most recent edition of the American medical association’s guide [‘AMA Guide’] to the evaluation of permanent impairment .or comparable publications of the American medical association.” NMSA 1978, § 52-1-24(A) (1990). The legislation compensates more generously those injuries that result in a higher degree of impairment than those injuries that result in a lesser degree of impairment. See, e.g., § 52-1-42(A)(l), (2) (distinguishing compensation for permanent partial disability when a worker has a “percentage of disability” that is “equal to or greater than eighty” and when a worker has a “percentage of disability” that is less). Workers who suffer an injury to a specific body member recover according to a schedule, which provides fewer than one hundred weeks compensation for many injuries. See NMSA 1978, § 52-1-43 (2003). Workers who suffer a “primary mental impairment” are distinguished from those who suffer a “secondary mental impairment.” See § 52-1-42(A)(3), (4); § 52-1-24(B), (C).' Permanent total physical disability is narrowly defined. See NMSA 1978, § 52-1-25(A) (2003) (including within the term “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”).
{58} The compensation limitations within this scheme arise primarily from the capacity of medical providers to determine the percentage of disability or degree of impairment the statutory classifications describe. The Legislature has directed a WCJ to rely upon the AMA Guide in making those determinations. See § 52-1-24(A). We have held that Section 52-1-24(A) is neither an unconstitutional delegation of the Legislature’s authority nor a violation of due process and equal protection. See Madrid v. St. Joseph Hosp. 1996-NMSC-064, ¶ 1, 122 N.M. 524, 928 P.2d 250. The statutory classifications reflect a trend toward objective determinations of physical injuries. See generally Carlos G. Martinez, “Selected Issues in Workers’ Compensation Laws,” in Mark D. Jarner et al., Advanced Workers’ Compensation in New Mexico 3 (2000) (describing the 1991 Legislature as seeking “a more objective formula for the definition of disability”). The distinction between benefits for a worker with a work-related mental impairment and a worker with a work-related physical impairment under the present compensation scheme probably reflects the lack of consensus on how to determine the percentage of disability for mental impairment after maximum medical improvement. See David L. Skinner, “Medical Issues and Their Bole in the Complex Workers’ Compensation Claim,” in Jarner et al., supra, 36-37.
{59} For example, the AMA Guide does not provide a method to determine the degree of mental impairment. The Guide notes that “there are no precise measures of impairments in mental disorders. The use of percentages implies a certainty that does not exist.... [T]he authors are unaware of data that show the reliability of the impairment percentages.” American Medical Association, Guides to the Evaluation of Permanent Impairment § 14.3, 361 (5th ed.2001). The AMA Guide lists factors to be considered in determining the severity of a mental impairment, id. § 14.4, 364, and uses “[t]he term remission, rather than cure ... to indicate an individual’s improvement.” Id. The AMA Guide refers readers to a diagnostic manual of mental disorders, id. § 14.2, 359, and that manual suggests “the majority of disorders” may be characterized as mild, moderate, or severe and as in partial or full remission. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 2 (4th ed.1994). Thus, while it is clear that mental impairments exist, the AMA Guide, on which the Legislature apparently relied in creating the present scheme of workers’ compensation, does not assist courts in determining the degree or permanence of such impairments. In providing a limitation of one hundred weeks for benefits for permanent partial disability arising from a primary mental impairment, the Legislature may have taken into account the possibility of an extended period of temporary total disability for a primary mental impairment.
{60} Temporary total disability compensates a worker while he or she cannot work or until maximum medical improvement. The Legislature apparently envisioned a relatively short period of time. A worker with a scheduled injury is entitled to receive compensation for such an injury in addition to compensation for temporary total disability. See Section 52-l-43(D). The Legislature may have envisioned temporary total disability benefits as providing for a worker until he or she could be evaluated for permanent partial disability or compensation for a scheduled injury. The AMA Guide indicates the time at which a worker with a primary mental improvement reaches maximum medical improvement may be difficult to determine. See AMA Guide, § 14.4, 364 (using the term remission rather than cure). Under these circumstances, a worker who receives temporary total disability benefits for a primary mental impairment may receive those benefits longer than a worker who suffers a scheduled injury or a physical injury. In providing a limitation of one hundred weeks for temporary total disability, the Legislature seems to me to have provided a limitation consistent with current medical knowledge and the goal of consistent, objective determinations.
{61} Consistent and objective determinations reached in reliance on current medical knowledge seem to have been within the Legislature’s intent. See NMSA 1978, § 52-5-1 (1990) (noting the Legislature’s interest in “the quick and efficient delivery of’ benefits “at a reasonable cost”). Current medical knowledge distinguishes physical and mental impairments in such a way that consistent and objective determinations of mental impairments appear to be more difficult to obtain than consistent and objective determinations of physical impairments. I do not believe that makes the scheme unconstitutional. Workers with physical impairments may not be similarly situated to workers with mental impairments under this scheme. The limitation of one hundred weeks for permanent partial disability seems to me to reflect a concern that for workers with primary mental impairments the definition of temporary total disability in fact provides a more consistent and objective determination of capacity to work than the concept of permanent partial disability. Further, the scheme seems to make costs more predictable by relying on objective, consistent determinations.
{62} New Mexico is not alone in attempting to accommodate mental injuries within a scheme that developed when manufacturing and agriculture occupied more workers and work-related mental injuries may have been less common and probably were less understood. Nationally, workers’ compensation systems are evolving in their treatment of mental impairments. 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law §§ 56.04, 56.06 (2004). Fifteen states do not compensate certain mental injuries at all. Id. § 56.06[4], States that do compensate such injuries limit benefits in a number of ways. Id. §§ 56.06[1], [5], [6], A durational limitation on compensation benefits for mental impairments seems to me to be a good illustration of the principle that in tackling a problem, such as adjusting a complex scheme to changing economic and social conditions, the Legislature need not proceed to solve it all at once. Cf. Kolton v. County of Anoka, 645 N.W.2d 403, 411-13 (Minn.2002) (upholding, against an equal protection challenge under both federal and state constitutions, a two-year limitation on benefits under a long-term disability plan for disabilities due to mental illness).
{63} A majority of the Court being of a different view, I respectfully dissent. I believe we disagree not on the proper treatment of legislation that discriminates on the basis of mental disability but rather on how to classify the legislation Workers challenge.