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Crespin v. Consolidated Constructors Inc.9/2/1993
s.
Recently, this Court had an opportunity to examine NMSA 1978, Section 52-1-41(A) (Repl.Pamp.1987), which deals with total disability, and it is almost identical to Section 52-1-42, which deals with partial disability. In ), we reversed a finding by the workers' compensation Judge that the worker was totally and permanently disabled solely from her secondary mental impairment. In that case, the worker's physical disability ended on March 15, 1991, so that at the time of the hearing the worker's disability was solely attributable to the secondary mental impairment. We adopted the employer's position that "Section 52-1-41(A)(2) allows compensation payments for as long as the physical disability is present; if the physical disability lasts less than 100 weeks, then a person who is totally disabled by secondary mental impairment can receive compensation payments for the balance of the 100 weeks and no more." . We should apply an extension of that reasoning here. Fitzgerald teaches that in cases of this nature, the workers' compensation Judges must first determine the maximum period allowable for a worker's disability produced by the physical impairment. Once that is done, Fitzgerald suggests that if that period is less than 100 weeks and the worker has a disability resulting from a secondary mental impairment which outlasts the physical disability, then he or she should receive compensation benefits for the duration of the mental disability, up to 100 weeks. By logical extension, only if the worker has a disability resulting from a physical impairment which lasts beyond 100 weeks should benefits continue for more than 100 weeks and for as long as the physical disability continues.
In Fitzgerald, not only did the worker have no disability resulting from a physical impairment, she no longer had a physical impairment. The majority opinion in the present case allows for the continuation of partial disability benefits as long as there is a physical impairment. One must conclude that this case will be read as distinguishable because Claimant here does have an ongoing physical impairment. I would agree with this distinction if Section 52-1-42 spoke in terms of impairment. It does not; it requires disability. See (courts must not construe statutes to achieve absurd results or to defeat intended legislative objectives).
Physical impairment gives birth to secondary mental impairment; mere physical impairment does not, however, carry compensation benefits for a disability resulting solely from that mental condition beyond
100 weeks. Only a physical disability can exceed the 100 weeks. The majority holding otherwise, I Dissent.
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