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Trujillo v. City of Albuquerque9/7/1993
Opinion
Claimant appeals from a compensation order awarding permanent partial disability and attorney's fees. Claimant contends that (1) the Workers' Compensation Judge (Judge) erred in failing to find that he was totally permanently disabled; (2) Respondent, City of Albuquerque (City), acted in bad faith in refusing to pay disability benefits prior to a judicial determination of disability; and (3) the Judge's decision resulted from bias or prejudice. We affirm in part and reverse in part.
FACTS
Claimant suffered an injury to his left shoulder on September 2, 1988, while working as a groundskeeper and handyman for the City at the Rio Grande Zoo. At the time of the injury, Claimant was fifty-four years old and had previously been determined to be totally disabled under the federal Social Security Act as a result of a back injury that occurred prior to his employment with the City. Payment of Social Security benefits, however, had been discontinued before the date Claimant sustained his work-related injury involved this case. Prior to his September 2, 1988, injury, Claimant had also been found to be totally permanently incapacitated for the purposes of receiving benefits under the Public Employees Retirement Act.
Testimony at trial indicated that Claimant completed only the fourth grade, that he speaks Spanish as a first language, and that he has difficulty speaking and understanding English. Other evidence indicated that Claimant has been classified as falling within the borderline range of intelligence and has below-average literacy skills. Claimant's job duties at the time of the September 1988 accident included work as a laborer, changing light bulbs, installing doors, and working on lavatory sinks. Claimant had previously been employed as a custodian, laborer, steel cutter, railroad laborer, groundskeeper, handyman, and agricultural worker.
After Claimant's September 1988 injury , he was examined or treated by a number of doctors and therapists. Claimant underwent surgery on February 20, 1989, to repair a torn rotator cuff. His postoperative diagnosis revealed that he was also suffering from an impingement syndrome due to degenerative arthritis, and joint and bicipital tendinitis. He reached maximum medical improvement on May 21, 1991.
Respondent presented evidence indicating that Claimant had an impairment rating between 12% to 15%. Virtually all of the specialists who treated him agreed that he could not return to his former employment as a handyman at the zoo, and that he should be confined to light-duty or sedentary work with restrictions against any overhead lifting or lifting over twenty-five pounds. Dr. Barry M. Diskant conducted an independent evaluation of Claimant on behalf of the City. He concluded that Claimant had a 14% permanent partial impairment of his left upper extremity, that he had reached maximum medical improvement, and that additional therapy would not assist in alleviating his condition. He also concluded that Claimant could perform light work but could no longer carry out his former occupation of handyman.
On July 22, 1991, Claimant filed a claim for workers' compensation benefits. At the hearing, the City's vocational expert, Debra Brewster, testified that the restrictions placed on Claimant's work activities by his medical care providers resulted in a 28.6% disability rating. In contrast, Claimant's vocational expert, Barbara Jarvis, testified that because of Claimant's age and physical and mental limitations he is not "qualified for work." At the Conclusion of the hearing, the Judge found that Claimant had been temporarily to
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