{ "id": 1552758, "name": "Donna BENAVIDEZ, Claimant-Appellant/Cross-Appellee, v. BLOOMFIELD MUNICIPAL SCHOOLS, Employer, and New Mexico Public School Insurance Authority, Insurer, Respondents-Appellees/Cross-Appellants", "name_abbreviation": "Benavidez v. Bloomfield Municipal Schools", "decision_date": "1994-02-04", "docket_number": "No. 14233", "first_page": "245", "last_page": "250", "citations": [ { "type": "official", "cite": "117 N.M. 245" }, { "type": "parallel", "cite": "871 P.2d 9" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "102 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580030 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "435", "parenthetical": "holding that future medical expenses are not to be included in computing the present value of a compensation award because they are too speculative" }, { "page": "118", "parenthetical": "holding that future medical expenses are not to be included in computing the present value of a compensation award because they are too speculative" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0433-01" ] }, { "cite": "102 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580168 ], "weight": 7, "year": 1985, "pin_cites": [ { "page": "338-39" }, { "page": "488-89" }, { "page": "338" }, { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0333-01" ] }, { "cite": "112 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720219 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "535" }, { "page": "728" }, { "page": "535-36" }, { "page": "728-29" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0533-01" ] }, { "cite": "93 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568654 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "487" }, { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0485-01" ] }, { "cite": "105 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599041 ], "weight": 6, "pin_cites": [ { "page": "372-73" }, { "page": "3-4" }, { "page": "373" }, { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0370-01" ] }, { "cite": "69 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790542 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0412-01" ] }, { "cite": "725 P.2d 832", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1986, "opinion_index": 0 }, { "cite": "104 N.M. 632", "category": "reporters:state", "reporter": "N.M.", "year": 1986, "opinion_index": 0 }, { "cite": "104 N.M. 652", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595020 ], "weight": 2, "pin_cites": [ { "page": "658" }, { "page": "1226" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0652-01" ] }, { "cite": "781 P.2d 305", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "109 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "year": 1988, "opinion_index": 0 }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 3, "pin_cites": [ { "page": "127" }, { "page": "366" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "83 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340190 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0038-01" ] }, { "cite": "102 N.M. 102", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580145 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "104" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0102-01" ] }, { "cite": "99 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584526 ], "weight": 9, "year": 1982, "pin_cites": [ { "page": "261" }, { "page": "117" }, { "page": "260" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0259-01" ] } ], "analysis": { "cardinality": 698, "char_count": 14864, "ocr_confidence": 0.722, "pagerank": { "raw": 7.031804182883812e-08, "percentile": 0.4243322680202591 }, "sha256": "3bfec50cd725d5096bcce439c82a5dfb269390668bedac56fba629bebe074be4", "simhash": "1:9a9462ca1e2bd8fe", "word_count": 2416 }, "last_updated": "2023-07-14T15:10:41.727131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and BIVINS, JJ., concur." ], "parties": [ "Donna BENAVIDEZ, Claimant-Appellant/Cross-Appellee, v. BLOOMFIELD MUNICIPAL SCHOOLS, Employer, and New Mexico Public School Insurance Authority, Insurer, Respondents-Appellees/Cross-Appellants." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nDonna Benavidez (Worker) appeals the decision of the workers\u2019 compensation judge (judge) that she was not entitled to additional workers\u2019 compensation benefits from the Bloomfield Municipal Schools (Employer) because the statute of limitations had run before she filed her claim. Employer cross-appeals, contending that (1) because Worker\u2019s claim was barred by the statute of limitations, the award of vocational rehabilitation benefits was improper; and (2) the judge\u2019s award of $800 in attorney fees was an abuse of discretion because it was based on an improper determination of the present value of Worker\u2019s award and because it was based in part on the future value of vocational rehabilitation benefits. We hold that substantial evidence supported the judge\u2019s conclusion that the statute of limitations had run on Worker\u2019s claim. We also hold that the judge did not err in awarding vocational rehabilitation benefits even though the statute of limitations had run on Worker\u2019s claim, and that the judge did not abuse his discretion in the award of attorney fees. We thus affirm both on the direct appeal and the cross-appeal.\nDISCUSSION\n1. Worker\u2019s Appeal\nWorker was employed as a custodian. Her job duties included dusting, washing windows and walls, vacuuming, scrubbing and waxing floors, shampooing carpets, cleaning restrooms, working on ladders, replacing light bulbs, and throwing out trash. She was injured in her right shoulder in the course and scope of her employment on August 29, 1988. She was paid temporary total disability benefits for this injury from November 25, 1988, to December 5, 1988. She returned to her normal work on December 5, 1988, and worked until March 6, 1991. During that time, she did not miss work. However, she continued to have pain in her shoulder, took medication for the pain from the time of the injury, and was under the care of her primary physician, Dr. Burns.\nOn February 13,1989, Worker requested a transfer to an area that was smaller than the area she had been responsible for working in at that time. She was not transferred. On February 27,1989, Dr. Burns referred Worker to an orthopedic surgeon, Dr. Kloberdanz, whom she first saw on March 2, 1989. Dr. Kloberdanz told Worker to work with her right arm next to her body to avoid stretching her shoulder. Worker did not follow this advice because she stated that she could not do her job in this manner; she continued to do her job unchanged. She also began using a \u201cTENS unit\u201d and continued to have pain. An MRI taken in February 1991 showed a rotator cuff tear in Worker\u2019s right shoulder. Afterward, on March 6, 1991, she left work because of increasing pain in her shoulder. Employer paid total disability benefits from March 6, 1991, to May 7, 1991. No benefits have been paid since that time. Worker filed her claim for workers\u2019 compensation benefits on October 16, 1991.\nThe judge found that Worker was 5% temporarily partially disabled from February 27, 1989, to March 6, 1991, and that she had a permanent physical impairment of 10%. However, the judge concluded that Worker was not entitled to additional weekly benefits because the statute of limitations began to run on her claim on February 27, 1989, and therefore expired before she filed her claim on October 16, 1991.\nNMSA 1978, Section 52-1-31(A) (Repl.Pamp.1991), requires a worker to file a claim for compensation within one year after the failure or refusal of the employer to pay compensation. Because an employer has thirty-one days from the date of the disability in which to pay the first installment of benefits and because the period of limitations is tolled for up to one year if the worker remains with the same employer, a worker has a maximum of two years and thirty-one days in which to file a claim for benefits. ABF Freight Sys. v. Montano, 99 N.M. 259, 260 n. 1, 657 P.2d 115, 116 n. 1 (1982); NMSA 1978, \u00a7 52-1-30 (Repl.Pamp.1991); \u00a7 52-1-31(A). The statute of limitations is triggered when a worker knows or should have known that he or she has a compensable injury. Smith v. Dowell Corp., 102 N.M. 102, 104, 692 P.2d 27, 29 (1984); Duran v. New Jersey Zinc Co., 83 N.M. 38, 487 P.2d 1343 (1971).\n'Worker contends that there is no evidence that she knew or should have known that she had a compensable injury on February 27,1989, the day the judge concluded the statute of limitations began to run. Worker points to the undisputed fact that she performed all her job duties without assistance until March 6, 1991, as evidence that she could not have known she had a compensable injury until March 6, 1991, and that in fact she did not have a compensable injury until then. However, in light of other substantial evidence, in the record, the fact that she continued to perform all her job duties until March 6, 1991, does not require reversal of the judge\u2019s decision.\nWe review decisions of the Workers\u2019 Compensation Administration for substantial evidence on the whole record. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). We must also view the evidence in the light most favorable to the agency\u2019s decision and findings, albeit taking into consideration evidence contrary to the agency\u2019s ruling. Id. at 129, 767 P.2d at 368.\nWe agree that, if a worker receives workers\u2019 compensation benefits and then returns to work at full capacity, it may be proper to find that the worker did not know, or may not have known, of any disability. Romero v. General Elec. Corp., 104 N.M. 652, 658, 725 P.2d 1220, 1226 (Ct.App.), cert. quashed,, 104 N.M. 632, 725 P.2d 832 (1986). However, in this case, there was substantial evidence supporting the judge\u2019s decision that Worker should have known she had a compensable injury on February 27, 1989. In ABF Freight System, our Supreme Court reinstated the trial court\u2019s decision that the workers\u2019 claim was barred by Section 52-1-31. ABF Freight Sys., 99 N.M. at 261, 657 P.2d at 117. There, the worker had suffered a work-related injury on February 4, 1972. Id. at 260, 657 P.2d at 116. After a stay in the hospital, he returned to full-time employment at the same job. Id. Nonetheless, the worker \u201chad a disability as evidenced \u2018by his working with pain, by the reduction of his activities of his employment, by his requesting others to assist him in the duties of his employment, by his seeking medical attention and by his application of home remedies to relieve his pain and disability.\u2019 \u201d Id. Our Supreme Court concluded that, when the worker filed his claim on July 23, 1980, he was beyond the statutory period when he knew or should have known that he had a compensable injury. Id.\nWe are unable to significantly distinguish ABF Freight System. Although Worker in this case did not request assistance with her duties, she suffered from pain, took medication, was under a doctor\u2019s care, and was referred to an orthopedic surgeon on February 27, 1989, for the continuing problem with her right shoulder. Although Worker did not testify that she requested a transfer on February 13, 1989, to a smaller work area because of her shoulder pain, it was reasonable for the judge to infer that her pain was a factor in the request. We consider these facts as substantial evidence to support the judge\u2019s decision that Worker knew or reasonably should have known she had a disability on or before February 27, 1989.\n2. Employer\u2019s Cross-appeal.\nWe first address Employer\u2019s contention that, in light of the judge\u2019s conclusion that the statute of limitations had run on Worker\u2019s claim for workers\u2019 compensation benefits, the judge erred in awarding vocational rehabilitation benefits. This is an issue of first impression in New Mexico. However, after considering the holdings in previous New Mexico cases, we determine that, like medical benefits, vocational rehabilitation benefits are not subject to the statute of limitations contained in Section 52-l-31(A).\nIt is well established in New Mexico that, even though a worker may not be entitled to installments of workers\u2019 compensation benefits because the claim was barred by Section 52-1-31(A), the worker can nonetheless receive an award of medical benefits for the work-related injury. See Nasci v. Frank Paxton Lumber Co., 69 N.M. 412, 367 P.2d 913 (1961). In Maitlen v. Getty Oil Co., 105 N.M. 370, 372-73, 733 P.2d 1, 3-4 (Ct.App.1987), this Court analogized vocational benefits to medical benefits to reject the employer\u2019s argument that the requirement of Section 52-l-31(A) (that the employer must fail or refuse to pay \u201cany installment of compensation\u201d before the worker\u2019s cause of action accrues) applied to vocational benefits. Id. at 373, 733 P.2d at 4. Maitlen thus held that Section 52-1-31(A) did not bar the worker\u2019s suit for vocational benefits. Id.\nAlthough the language of NMSA 1978, Section 52-1-50 has been partially changed, compare NMSA 1978, \u00a7 52-1-50 (Repl. Pamp.1991) (effective until January 1, 1991), with NMSA 1978, Section 52-1-50 (Cum. Supp.1985), the wording of the statute still indicates a legislative intent to treat vocational rehabilitation benefits similarly to medical benefits. Section 52-1-50(0 states in part that, \u201c[sjubject to the requirements imposed upon the worker and the other limitations of this section, the employer shall furnish vocational rehabilitation services for the worker who has suffered an injury that is covered by the Workers\u2019 Compensation Act.\u201d (Emphasis added.) This language indicates that the limitations imposed on the receipt of vocational rehabilitation benefits are only those contained in Section 52-1-50. Section 52-1-50(E) provides a specific time limitation during which a worker, under certain circumstances, must provide written notice to the employer or be barred from receiving vocational rehabilitation benefits. Neither party, however, has argued that Subsection E is applicable here. Additionally, vocational rehabilitation benefits cannot be included in any lump-sum settlement of a worker\u2019s claim, see \u00a7 52-l-50(G), further indicating that they are considered to be different from installments of compensation. Vocational rehabilitation benefits are also required to be paid only as charges are incurred, id., like medical benefits. We thus hold that vocational rehabilitation benefits are not subject to the statute of limitations contained in Section 52-1-31(A) and affirm the judge\u2019s award of such benefits to Worker.\nAlthough Employer phrases its second issue as an argument that the judge\u2019s valuation of the present value of Worker\u2019s award is not supported by substantial evidence, Employer\u2019s argument is essentially that the judge abused his discretion in the amount assessed as attorney fees. The present value of the award to Worker was calculated as $842.16. The judge based this computation on Worker\u2019s request for reimbursement of mileage expenses, which was submitted on or about December 17, 1991, and which included mileage incurred in 1991. Worker was actually reimbursed $260.20 by Employer for the 1991 mileage on December 27, 1991. Thus, the corrected value of the award to Worker was $581.96. Based on this corrected amount, the attorney fee award of $800 thus equaled 138% of the present value of the award.\nWhen determining an appropriate award of attorney fees, the judge must consider both the statutory factors and the factors listed in Fryar v. Johnsen, 93 N.M. 485, 487, 601 P.2d 718, 720 (1979). Attorney fee awards are reviewed for abuse of discretion. Sanchez v. Siemens Transmission Sys., 112 N.M. 533, 535, 817 P.2d 726, 728 (1991). In Woodson v. Phillips Petroleum Co., 102 N.M. 333, 695 P.2d 483 (1985), our Supreme Court clarified its holding in Fryar. Under Woodson, an attorney fee in the range of 10% to 20% of the present value of the worker\u2019s award is generally appropriate. Id. at 338-39, 695 P.2d at 488-89. However, our Supreme Court acknowledged that \u201ca percentage-based method of awarding attorney fees may break down in eases in which the [worker\u2019s] recovery is unusually large or unusually small.\u201d Id. at 338, 695 P.2d at 488.\nWe recognize that the $800 attorney fee award in this case is equal to 138% of the present value of the award. Nonetheless, we are not convinced that the judge abused his discretion simply because the attorney fee is greater than the present value of the award to Worker. This case is one where Worker\u2019s recovery was small; thus, limiting the attorney fee to a certain percentage of the award would be \u201ctotally inadequate to fairly compensate\u201d Worker\u2019s attorney. See id. Additionally, our Supreme Court has recently approved an attorney fee greater than the present value of the worker\u2019s award. In Sanchez, an attorney fee equal to 102% of the worker\u2019s award was held not to be excessive when considered together with the statutory and Fryar factors. Sanchez, 112 N.M. at 535-36, 817 P.2d at 728-29. The findings in this case indicate that the judge considered the Fryar factors, including recognition of the policy that miserly attorney fee awards can adversely affect legal representation for workers. Additionally, Worker\u2019s attorney requested reimbursement for twenty-seven hours; an $800 award thus reflects payment of only $29.62 per hour. When considered in this context, the award of attorney fees was not an abuse of discretion.\nEmployer also contends that the award of attorney fees based on the award of vocational rehabilitation benefits should be reversed because the judge\u2019s reliance on such benefits was \u201ctoo speculative.\u201d See Board of Educ. v. Quintana, 102 N.M. 433, 435, 697 P.2d 116, 118 (1985) (holding that future medical expenses are not to be included in computing the present value of a compensation award because they are too speculative). We reject Employer\u2019s argument because the findings indicate that the judge did not include the value of future vocational rehabilitation benefits in determining the present value of Worker\u2019s award.\nCONCLUSION\nWe hold that substantial evidence supported the judge\u2019s conclusion that the statute of limitations began running on Worker\u2019s claim on February 27, 1989, and that her claim was therefore untimely filed. We also hold that the judge did not abuse his discretion in awarding $800 in attorney fees for Worker\u2019s counsel. We therefore affirm the judge\u2019s decision.\nIT IS SO ORDERED.\nDONNELLY and BIVINS, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Victor A. Titus, Titus & Gurley, Farming-ton, for claimant-appellant/cross-appellee.", "David L. Skinner, Pelton & O\u2019Brien, Albuquerque, for respondents-appellees/cross-appellants." ], "corrections": "", "head_matter": "871 P.2d 9\nDonna BENAVIDEZ, Claimant-Appellant/Cross-Appellee, v. BLOOMFIELD MUNICIPAL SCHOOLS, Employer, and New Mexico Public School Insurance Authority, Insurer, Respondents-Appellees/Cross-Appellants.\nNo. 14233.\nCourt of Appeals of New Mexico.\nFeb. 4, 1994.\nVictor A. Titus, Titus & Gurley, Farming-ton, for claimant-appellant/cross-appellee.\nDavid L. Skinner, Pelton & O\u2019Brien, Albuquerque, for respondents-appellees/cross-appellants." }, "file_name": "0245-01", "first_page_order": 281, "last_page_order": 286 }