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Garcia v. Mora Painting & Decorating5/23/1991
This is an appeal from a decision of the Workers' Compensation Administration (administration). Ricky L. Garcia (worker) filed claims against his former employer, Mora Painting & Decorating (previous employer) and against the company that employed him at the time of his second accident, Advanced Painting Specialists (subsequent employer). The workers' compensation judge (judge), after finding worker to be temporarily totally disabled, apportioned liability between previous employer and subsequent employer. Previous employer has appealed, contending that the judge did not have authority to apportion liability between the two employers and that any liability previous employer might have had is barred by worker's failure to file a timely claim. See NMSA 1978, 52-1-31(A) (Repl. Pamp. 1987).
Previous employer has argued on appeal that the judge erroneously apportioned liability under NMSA 1978, Section 52-1-47(D) (Repl. Pamp. 1987). Subsequent employer defends the apportionment as consistent with this court's decision in ) and . The evidence in this case established a compensable disability, of which the second accident was the proximate cause, and therefore that subsequent employer was initially liable for all compensation awarded worker. See 52-1-47(D); Gonzales v. Stanke-Brown & Assocs. Subsequent employer, however, failed to establish that the benefits for which it was liable would duplicate benefits paid or payable on account of the first injury . We conclude that Section 52-1-47(D) is not applicable to subsequent employer's liability for temporary total disability on these facts. Id. Urioste is not controlling, because it is factually distinguishable. In view of our disposition, we do not address previous employer's second issue. We reverse and remand with instructions to enter judgment for worker against subsequent employer as to the total temporary disability award and to proceed to determine the degree of permanent impairment and disability.
{PA}
Page 598} FACTS AND PROCEDURAL BACKGROUND.
On April 2, 1986, while working in the course and scope of his employment as a commercial painter with previous employer, worker fell and injured his back. He missed a little over a month of work. Previous employer paid him disability benefits and reimbursed him for his medical expenses.
When worker's treating physician released him to return to work, previous employer had no job for him. He found a job with another employer, who is not a party to this appeal. He disclosed his work limitations to that employer, who allowed him to delegate some of his duties. Although experiencing pain, worker was able to complete the tasks assigned to him.
During this time, worker's physician referred him to an orthopedic specialist, Dr. Thorpe. On July 8, 1987, Dr. Thorpe diagnosed worker as suffering from a herniated L5-S1 disc.
At the hearing before the administration, Dr. Thorpe testified by deposition that a lumbar CT scan on June 23, 1987, revealed a small left-sided disc herniation at the L5-S1 level. He also testified that the herniation that existed on June 23 was causally related to a reasonable medical probability to the April 2, 1986 accident. It is undisputed that worker had continuing pain, but that he was tolerating it sufficiently to work. In August, 1987, Dr. Thorpe again saw worker. At that time, Dr. Thorpe found a very tender focus of pain in the lower back, which he injected with steroids. When Dr. Thorpe saw worker again in December, 1987, he was stable. Dr. Thorpe testified that worker's prognosis for recovery was good at this time. He did not recommend that wor
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