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Baca v. Bueno Foods12/8/1988
HARTZ, Judge.
The Workers' Compensation Division's (WCD) hearing officer found that claimant, Josephine Baca, injured a finger and her back in an accident arising out of her employment with Bueno Foods and had been unable to perform job duties since then. He granted her judgment for temporary total disability benefits because her injury had not yet reached maximum medical improvement. We reverse the award for temporary total disability after considering: (1) the meaning of "maximum medical improvement" in the definition of "temporary total disability"; (2) whether there was substantial evidence to support the hearing officer's finding of no maximum medical improvement; and (3) the allocation of the burden of proof on that issue. The hearing officer also ordered respondents, Bueno Foods and Safeco Insurance Company, to pay the bills from two doctors Baca consulted. We reverse the judgment requiring respondents to pay the bills and remand for further findings with respect to the bill of one of the doctors.
TEMPORARY TOTAL DISABILITY
The issue of temporary total disability arises under transient provisions of the New Mexico Workers' Compensation Act. NMSA 1978, §§ 52-1-1 to -69 (Cum. Supp. 1986) (the Interim Act). Section 52-1-26 of the Interim Act defines "temporary total disability" as "the inability of the workman, by reason of accidental injury arising out of and in the course of his employment, to perform his duties prior to the date of his maximum medical improvement." (Emphasis added.) Section 52-1-27 of the Interim Act defines "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 reasonable medical probability." After reaching maximum medical improvement the employee may receive scheduled benefits or permanent total or partial disability benefits provided by Sections 52-1-41 to -43 of the Interim Act.
This statutory scheme is common in the United States.
In the usual industrial injury situation, there is a period of healing and complete wage loss, during which, subject to any applicable waiting period, temporary total is payable. This is followed by a recovery, or stabilization of the condition, and probably resumption of work, and no complex questions ordinarily arise.
The commonest question is: when does the "healing period" end and "stabilization" occur? The answer to this question determines in most states when temporary benefits cease and when the extent of permanent disability can be appraised, for purposes of making either a permanent partial or a permanent total award.
2 A. Larson, The Law of Workmen's Compensation § 57.12(b) at 10-14 to 10-17 (1987) (footnotes omitted).
Respondents contend that no substantial evidence supports the finding that Baca had not reached maximum medical improvement. In Tallman v. ABF, 108 N.M. 124, 767 P.2d 363 (1988), we held that whole record review as announced in Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 681 P.2d 717 (1984), applies to appeals from the WCD. Following Tallman, we view "the live witness testimony as the fact finder did and considering all other evidence, favorable and unfavorable, and disregarding that which is discredited, we then decide if there is substantial evidence in the whole record to support the agency's finding or decision." Id. at 128, 767 P.2d at 367.
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