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Kennecott Copper Corp. v. Chavez12/13/1990
The New Mexico Subsequent Injury Fund (Fund) appeals the workers' compensation judge's (judge) determination that the Fund is liable for 50% of payments made by employer to worker. The Fund raises several issues. It initially argues that employer had insufficient knowledge of any preexisting impairment to allow employer to recover, despite the late filing of the certificate of preexisting impairment. See (where employer has actual knowledge of impairment before the subsequent injury, necessary certificate may be filed after the subsequent injury). In this appeal, worker was disabled in July 1986. Because worker became permanently disabled two months after the effective date of the 1986 amendments, these terms are controlling. NMSA 1978, §52-2-6 (Cum. Supp. 1986); ) (date injury compensable controls as to which version of statute governs claim; 1986 amendments effective May 21, 1986). Based on several other contentions involving substantial evidence review, the Fund also contends the judge's decision was erroneous even if employer had the required knowledge of the preexisting impairment. We hold that employer had actual knowledge of the preexisting condition and that substantial evidence otherwise supported the judge's determination. We therefore affirm the judge's decision.
FACTS
Worker was employed by employer from 1970 through 1986. In August 1977, he suffered a knee injury playing baseball. The knee later disabled worker in September 1977, while he was at work. He underwent surgery to remove cartilage in 1978 and spent nine months recuperating from the surgery before returning to work. Worker was not terminated from his employment before or during the nine-month recuperation period. Following his return to work, worker performed all the tasks required of his position and experienced no difficulty with his knee.
In July of 1986, worker reinjured his knee while attempting to jump onto a bulldozer ladder. On this occasion, he tore a ligament in the knee. After this later accident, employer settled a compensation claim filed by worker and then filed the action underlying this appeal, seeking reimbursement from the Fund. Employer had not filed a certificate of pre-existing impairment until after the 1986 accident. The judge ordered the Fund to reimburse employer for 50% of the benefits paid to worker, pursuant to the New Mexico Subsequent Injury Act provisions applicable to this case (the Act). See NMSA 1978, §§ §52-2-1 to -13 (Orig. Pamp. and Supp. 1986, to extent applicable).
{PA}
Page 370} Discussion
1. Employer's Knowledge.
The Fund contends the only evidence of employer's knowledge is that employer knew that worker: (1) was injured in 1977; (2) had surgery on his knee; and (3) returned to work after a nine-month recuperation period. Additionally, the Fund maintains there was no evidence that worker walked with a limp after returning to work or that he had difficulty performing his tasks. The Fund essentially argues that there were no facts to "tip off" employer to the fact that worker had not fully and completely recovered from his surgery. For all employer knew, the Fund reasons, worker's knee had returned to 100% of its pre-injury strength.
The Fund contends the evidence was insufficient to support the finding that employer knew of worker's preexisting impairment. This court will not reweigh the evidence, but will review only to determine whether substantial evidence on the whole record supports the decision. See generally Tallman v. ABF (Arkansas . Since one purpose of the Act is to encourage employers to hire or retain workers they know are handicapped, th
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