{ "id": 1559009, "name": "Ofelia LEVARIO, Worker-Appellee, v. YSIDRO VILLAREAL LABOR AGENCY and Mountain States Mutual Casualty Company, Employer/Insurer-Appellants", "name_abbreviation": "Levario v. Ysidro Villareal Labor Agency", "decision_date": "1995-10-24", "docket_number": "No. 15596", "first_page": "734", "last_page": "739", "citations": [ { "type": "official", "cite": "120 N.M. 734" }, { "type": "parallel", "cite": "906 P.2d 266" } ], "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": "112 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720219 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nm/112/0533-01" ] }, { "cite": "112 N.M. 236", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720275 ], "weight": 2, "pin_cites": [ { "page": "238" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0236-01" ] }, { "cite": "104 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594915 ], "weight": 2, "pin_cites": [ { "page": "71-72" }, { "page": "649-50" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0067-01" ] }, { "cite": "98 N.M. 560", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582440 ], "weight": 2, "pin_cites": [ { "page": "565" }, { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0560-01" ] }, { "cite": "111 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715074 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "552-53" }, { "page": "736-37" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0550-01" ] }, { "cite": "74 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803173 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "794" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0789-01" ] }, { "cite": "76 N.M. 321", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502088 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "326", "parenthetical": "when causal connection has been denied and when medical opinion based on the facts has been expressed and is uncontradicted, the evidence is conclusive upon the fact finder" }, { "page": "683", "parenthetical": "when causal connection has been denied and when medical opinion based on the facts has been expressed and is uncontradicted, the evidence is conclusive upon the fact finder" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0321-01" ] }, { "cite": "106 N.M. 350", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708310 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "351" }, { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0350-01" ] }, { "cite": "70 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850768 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "336", "parenthetical": "it is the fact finder's prerogative to determine the weight and credibility to be given to testimony" }, { "page": "826", "parenthetical": "it is the fact finder's prerogative to determine the weight and credibility to be given to testimony" } ], "opinion_index": 0, "case_paths": [ "/nm/70/0332-01" ] }, { "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": "367" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "111 N.M. 104", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715110 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "106", "parenthetical": "\"Enactments of the legislature are to be interpreted to accord with common sense and reason.\"" }, { "page": "11", "parenthetical": "\"Enactments of the legislature are to be interpreted to accord with common sense and reason.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0104-01" ] }, { "cite": "110 N.M. 457", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716910 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "\"[W]hen the legislature does not provide an express definition of an essential statutory term, it must be assumed that the legislature was aware of the construction given that term in the judicial decisions of other jurisdictions.\"" }, { "parenthetical": "\"[W]hen the legislature does not provide an express definition of an essential statutory term, it must be assumed that the legislature was aware of the construction given that term in the judicial decisions of other jurisdictions.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0457-01" ] }, { "cite": "277 Cal.Rptr. 102", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1991, "pin_cites": [ { "page": "106", "parenthetical": "recognizing a distinction between a worker's usual and customary occupation and the position in which the worker was engaged at the time of the injury" } ], "opinion_index": 0 }, { "cite": "226 Cal.App.3d 867", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2334567 ], "year": 1991, "pin_cites": [ { "parenthetical": "recognizing a distinction between a worker's usual and customary occupation and the position in which the worker was engaged at the time of the injury" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/226/0867-01" ] }, { "cite": "735 P.2d 921", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10410804 ], "pin_cites": [ { "page": "923" } ], "opinion_index": 0, "case_paths": [ "/p2d/735/0921-01" ] }, { "cite": "462 N.W.2d 505", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 12045024 ], "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nw2d/462/0505-01" ] }, { "cite": "114 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731615 ], "weight": 2, "pin_cites": [ { "page": "462" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0460-01" ] }, { "cite": "80 N.M. 220", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354517 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "222" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0220-01" ] }, { "cite": "115 N.M. 590", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725403 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "594", "parenthetical": "\"courts not permitted to read into statute language that is not there, especially when statute makes sense as written\"" }, { "page": "1058", "parenthetical": "\"courts not permitted to read into statute language that is not there, especially when statute makes sense as written\"" }, { "page": "1058", "parenthetical": "\"courts not permitted to read into statute language that is not there\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0590-01" ] }, { "cite": "109 N.M. 668", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590286 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "671" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0668-01" ] }, { "cite": "115 N.M. 308", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725392 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "311" }, { "page": "1014" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0308-01" ] } ], "analysis": { "cardinality": 1001, "char_count": 18843, "ocr_confidence": 0.71, "pagerank": { "raw": 2.7233308965534636e-07, "percentile": 0.8303779486757722 }, "sha256": "85871afb609ebabd4bc5748cd8f60d979511f6bfa3da530917c788b894236074", "simhash": "1:b0d7fed57644a5d5", "word_count": 3026 }, "last_updated": "2023-07-14T17:50:53.788074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FLORES and BUSTAMANTE, JJ., concur." ], "parties": [ "Ofelia LEVARIO, Worker-Appellee, v. YSIDRO VILLAREAL LABOR AGENCY and Mountain States Mutual Casualty Company, Employer/Insurer-Appellants." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\nEmployer appeals from the compensation order determining Worker\u2019s entitlement to permanent partial disability benefits under the Workers\u2019 Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (Repl.Pamp.1991 & Cum.Supp.1995) (the Act). The issues on appeal are whether the Workers\u2019 Compensation Judge (WCJ) erred in: (1) applying Section 52-1-26.4 (physical capacity modification); (2) finding that a causal connection was established between Worker\u2019s shoulder impairment and her work-related accident; and (3) applying Section 52-1-26.2 (age modification). We affirm.\nFacts\nWorker was employed as an onion sorter at the time of her accident. She slipped on an onion on June 27, 1992, while in the course and scope of her employment. Employer received the requisite written notice of Worker\u2019s accident.\nThe amendments to the Act effective after January 1, 1991, govern Worker\u2019s entitlement to benefits. See \u00a7 52-1-48. Under Sections 52-1-26 to 52-1-26.4, if a worker, after reaching maximum medical improvement (MMI), earns less than his or her preinjury wage, the worker\u2019s permanent partial disability is determined by first calculating the worker\u2019s impairment, see \u00a7 52-l-24(A) (defining impairment), and then adding a percentage based on age, education, and physical-capacity modifications.\nWorker was forty-four years old when she reached MMI and forty-five years old at the time of the hearing that resulted in the compensation order. The WCJ found that Worker injured her ankle, back, and shoulder in the accident.\nWorker was employed seasonally as an onion sorter from 1990 to 1992. Her duties included standing by a conveyor belt, putting non-marketable onions into a burlap bag, picking up onions from the floor and placing them into twenty-five-pound bags, and lifting and carrying twenty-five-pound bags to the stacker about twenty times a day. In addition to her seasonal employment with Employer, Worker had another seasonal job as a pine-seed sorter for Plant Propagation Technologies from 1990 to 1992. This job required lifting seedlings weighing approximately one ounce and occasionally lifting a twelve-pound block of pine seedlings.\nFrom 1986 to 1992, Worker was also employed seasonally with Joy Canning as a green chile sorter. Worker stood by a conveyor and separated mild green chile according to grade and color. She did not lift anything heavier than one green chile. The Pancake Alley Restaurant employed Worker as a dishwasher from 1987 to 1989. In this position, Worker occasionally carried dish tubs that weighed approximately twenty to twenty-five pounds. Typically, Worker lifted dishwasher trays weighing between six and twelve pounds.\nFrom 1980 to 1987, Worker was employed as a maid for the Royal House Motel. This job required her to clean rooms, make beds, and fold and carry linens. Worker testified that she moved dressers that weighed more than fifty pounds, pushed a linen cart that weighed more than fifty pounds, and occasionally turned mattresses that weighed more than twenty-five pounds.\nBased on the foregoing, the WCJ determined that Worker is permanently partially disabled and, after reaching MMI, unable to return to work at a wage equal to or greater than Worker\u2019s pre-injury wage. The WCJ found Worker\u2019s pre-injury physical capacity to be \u201cheavy,\u201d and Worker\u2019s residual physical capacity to be \u201csedentary.\u201d See \u00a7 52-1-26.4(B), (C) (physical capacity modification). The WCJ further determined that Worker was forty-five years old at the time of the disability rating, see \u00a7 52-l-26.2(B)(2) (age modification), and that Worker had a fifth-grade education. See \u00a7 52-l-26.3(B)(l) (education modification).\nI. Physical Capacity Modification\nSection 52-l-26.4(B) provides that \u201c[t]he award of points to a worker shall be based upon the difference between the physical capacity necessary to perform the worker\u2019s usual and customary work and the worker\u2019s residual physical capacity.\u201d (Emphasis added.) \u201cUsual and customary\u201d work is characterized as \u201cheavy\u201d when a worker lifts \u201cover fifty pounds occasionally or up to fifty pounds frequently.\u201d Section 52-1-26.4(0(1).\nEmployer contends that the WCJ erred in considering Worker\u2019s employment history of a motel maid and dishwasher in classifying Worker\u2019s usual and customary work. Employer argues that the WCJ should have considered only Worker\u2019s employment as an agricultural sorter, the employment Worker held during the three years before the accident.\n\u201cUsual and customary\u201d is not defined in the applicable provisions of the Workers\u2019 Compensation Act. Accordingly, we presume that the legislature intended the ordinary and common meanings of these words to apply. See, e.g., Whitely v. New Mexico State Personnel Bd., 115 N.M. 308, 311, 850 P.2d 1011, 1014 (1993); State v. Ruffins, 109 N.M. 668, 671, 789 P.2d 616, 619 (1990). For guidance, we turn to Black\u2019s Law Dictionary 1544 (6th ed. 1990), which defines \u201cusual\u201d as \u201ccommonly established, observed, or practiced\u201d and \u201c[tjhat which happens in common use or occurs in ordinary practice or course of events.\u201d \u201cCustomary\u201d is defined as \u201c[a]c-cording to custom or usage; founded on, or growing out of, or dependent on, a custom.\u201d Id. at 385.\nWe decline to interpret \u201cusual and customary\u201d as narrowly as Employer requests. Section 52-1-26.4 does not set forth any definite time frame for considering an applicable employment history, and we do not believe it appropriate to adopt a rigid time frame or rule. Cf. \u00a7 52-1-26.3(0 (skills may be measured by reviewing jobs in the ten years preceding the disability determination); see also Dona Ana Sav. & Loan Ass\u2019n v. Dofflemeyer, 115 N.M. 590, 594, 855 P.2d 1054, 1058 (1993) (\u201ccourts not permitted to read into statute language that is not there, especially when statute makes sense as written\u201d) (citing State ex rel. Barela v. New Mexico State Bd. of Educ., 80 N.M. 220, 222, 453 P.2d 583, 585 (1969)). By negative inference, unlike Section 52-1-26.3(0 (ten years for skills), Section 52-1-26.4 does not limit the WCJ to any particular time frame, whether it be three years or ten years. See, e.g., State v. Lucero, 114 N.M. 460, 462, 840 P.2d 607, 609 (Ct.App.1992) (\u201cWhen there are provisions in analogous statutes that a party contends should be present in the statute at issue in the case, we utilize the process of negative inference to reason that the absence of such provisions in the statute at issue is intentional.\u201d).\nAlthough guidance from other jurisdictions is necessarily limited because of the uniqueness of the New Mexico Workers\u2019 Compensation Act, we note that other courts generally have not adopted a narrow interpretation of the terms \u201cusual and customary.\u201d See, e.g., Beckman v. John Morrell & Co., 462 N.W.2d 505, 508 (S.D.1990) (\u201cA person\u2019s usual and customary line of employment may be determined by such factors as the skills or abilities of the person, the length of time the person has spent in the type of work, the proportion of time the person has spent in the type of work when compared to the worker\u2019s entire working career, and the duties and responsibilities of the person at the work place.\u201d); Smith v. Industrial Comm\u2019n, 735 P.2d 921, 923 (Colo.Ct.App.1986) (noting that Colorado regulations provide that workers are deemed permanently precluded from engaging in their usual and customary occupation when they are unable to perform work for which they have previous training or experience); Vasquez v. Workers\u2019 Compensation Appeals Bd., 226 Cal.App.3d 867, 277 Cal.Rptr. 102, 106 (1991) (recognizing a distinction between a worker\u2019s usual and customary occupation and the position in which the worker was engaged at the time of the injury) (rev. denied Mar. 20, 1991).\nWe follow the lead of South Dakota, Colorado, and California, and hold that \u201cusual and customary\u201d work is not limited to the job held by the worker at the time of injury, or to the worker\u2019s job within a specific time frame. Cf. Folz v. State, 110 N.M. 457, 462 n. 3, 797 P.2d 246, 251 n. 3 (1990) (\u201c[W]hen the legislature does not provide an express definition of an essential statutory term, it must be assumed that the legislature was aware of the construction given that term in the judicial decisions of other jurisdictions.\u201d). Rather, we take a broader view of the statute and conclude that it is the WCJ\u2019s prerogative, as fact finder, to consider, within reason and practicality, a worker\u2019s entire work history and experience in order to determine what is a worker\u2019s \u201cusual and customary\u201d work. See, e.g., Lopez v. Employment Sec. Din, 111 N.M. 104, 106, 802 P.2d 9, 11 (1990) (\u201cEnactments of the legislature are to be interpreted to accord with common sense and reason.\u201d).\nWe analyze this case under the whole record standard of review, as we would all workers\u2019 compensation cases. Tollman 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). In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact finder. Id. at 128, 767 P.2d at 367. As mentioned earlier, testimony was presented that Worker\u2019s employment history includes frequently lifting objects weighing twenty-five pounds and occasionally moving objects weighing more than fifty pounds.\nWe note that Worker\u2019s longest employment, from 1980 to 1987, was as a motel maid and that Worker was employed as a motel maid until five years prior to her employment as an onion sorter. A review of Worker\u2019s employment experience reveals that she has always worked as an unskilled laborer. Although Worker\u2019s current and most recent employment has been as a seasonal worker, Worker may not always be in a situation where she works seasonally, as opposed to year-round, or in a place where seasonal work is even available. Unlike an individual who previously worked as a heavy laborer and then underwent a fundamental career change to become a professional, Worker has not undergone such change. Worker\u2019s jobs and experience have consistently involved unskilled labor.\nBased on the evidence presented, we affirm the WCJ\u2019s determination that Worker\u2019s usual and customary work was \u201cheavy.\u201d See \u00a7 52-1-26.4(0(1). Although the motel owner testified that the maids did not move the mattresses and room furniture unassisted, Worker testified that she moved dressers weighing more than fifty pounds, sometimes with assistance and sometimes alone. See Montano v. Saavedra, 70 N.M. 332, 336, 373 P.2d 824, 826 (1962) (it is the fact finder\u2019s prerogative to determine the weight and credibility to be given to testimony).\nII. Causal Connection Between Shoulder Injury and Accident\nThe WCJ found that, as a direct result of Worker\u2019s June 27, 1992 work-related accident, Worker suffered an injury to her right ankle, left shoulder, and lower back. Because Employer disputed that Worker\u2019s shoulder impairment was a natural and direct result of the accident, Worker had to establish by expert testimony of a health care provider that the shoulder impairment was causally related to the accident. See \u00a7 52-l-28(B); Oliver v. City of Albuquerque, 106 N.M. 350, 351, 742 P.2d 1055, 1056 (1987); cf Ross v. Sayers Well Servicing Co., 76 N.M. 321, 326, 414 P.2d 679, 683 (1966) (when causal connection has been denied and when medical opinion based on the facts has been expressed and is uncontradicted, the evidence is conclusive upon the fact finder).\nDr. Wayne Watson was the sole health care provider to testify on causation. In response to a question on direct examination of whether he could say to a reasonable degree of medical probability that Worker sustained any permanent impairment to her left shoulder as a result of the June 27, 1992 accident, Watson testified that he felt that Worker had \u201ca prehistory of problems in that left shoulder that had led to a lot of the condition it was in.\u201d (Emphasis added.) When asked the question on cross-examination, he stated: \u201cWell, I am very doubtful. There are impairments to the shoulder. The shoulder has serious problems, but I\u2019m very doubtful about how this shoulder could have been injured. And I have concerns about some o/-the pre-existing components of that shoulder condition when I saw it.\u201d (Emphasis added.) He later responded to a similar question by stating that, \u201cas I said earlier, I\u2019m extremely doubtful that the permanent changes in that shoulder derive from a single episode of straining, particularly based on the profound changes in the joint at the time I initially saw her.\u201d (Emphasis added.) Dr. Watson reviewed the medical records from a prior health care provider that stated that during her fall, Worker \u201cgrasped a nearby employee with her outstretched left arm and suffered some type of downward traction strain on her left arm.\u201d He further stated that he did not feel that Worker attempted \u201cto involve unrelated complaints.\u201d He also testified that \u201c30 to 40 percent [of the shoulder condition] is likely the remnant of her injury, if any, whether by means of aggravation or otherwise.\u201d\nDr. Watson was not required to state his opinion in \u201cpositive, dogmatic language or in the exact language of the statute.\u201d Gammon v. Ebasco Corp., 74 N.M. 789, 794, 399 P.2d 279, 282 (1965). The sense of his testimony had to reasonably connote the statutory requirement. Id. When viewed in its entirety, we believe that it did. The doctor did not directly respond to the questions on causal connection. However, in expressing his concern about the serious pre-existing condition of Worker\u2019s shoulder, he qualified his testimony in such a manner that could reasonably have permitted the WCJ to conclude that there was a causal connection between a portion of Worker\u2019s shoulder impairment and her work-related accident. This conclusion comports with Dr. Watson having assigned only a small percentage impairment to Worker\u2019s shoulder as related to her work injury even though he found that the shoulder had serious problems.\nGenerally, when there is conflicting medical testimony concerning causation, the reviewing court will defer to the finder of fact. Herman v. Miners\u2019 Hosp., 111 N.M. 550, 552-53, 807 P.2d 734, 736-37 (1991); Bufalino v. Safeway Stores, Inc., 98 N.M. 560, 565, 650 P.2d 844, 849 (Ct.App.1982). We do not see any reason to apply a diffei\u2019ent standard when a conflict may exist in the testimony of a single medical expert. Cf. Hernandez v. Mead Foods, Inc., 104 N.M. 67, 71-72, 716 P.2d 645, 649-50 (Ct.App.1986) (\u201cConflicts in the evidence, even in the testimony of a single witness, present a fact question for the [trier of fact] to decide.\u201d); Sanchez v. Siemens Transmission Sys., 112 N.M. 236, 238, 814 P.2d 104, 106 (Ct.App.) (\u201cTo the extent that [a doctor\u2019s] testimony ... can be read as ambiguous or inconclusive, ... it is the WCJ\u2019s prerogative to determine the weight to be given to the ... testimony.\u201d), rev\u2019d on other grounds, 112 N.M. 533, 817 P.2d 726 (1991).\nIII. Age Modification\nSection 52-l-26.2(A) provides that \u201c[t]he modification is based upon the worker\u2019s age at the time of the disability rating.\u201d When a party disputes the rating, the WCJ determines the rating and sets forth findings of fact and conclusions of law. Section 52-5-7(A), (B) (Cum.Supp.1995).\nEmployer argues that basing the age modification on the time of the hearing or compensation order is unfair and impractical. Specifically, Employer notes that a worker who is about to turn forty-five, fifty, fifty-five, or sixty would benefit enormously by having scheduled trials vacated until after the worker has a birthday, thereby gaining an additional modification point. However, a workers\u2019 compensation judge has discretion to vacate a trial, and we are confident that a judge would take any actions necessary to prevent a worker from engaging in an unfair tactical ploy. There is no claim that Worker in this case engaged in unfair tactics.\nEmployer contends that Worker\u2019s age modification points should be based on Worker\u2019s age on the date she reached MMI, because the date of MMI is the date: (1) the treating physician, as an objective party, assigns the worker an impairment rating; (2) temporary total disability benefits cease and partial disability benefits begin; and (3) the insurance carrier uses in assigning age modification points. Employer\u2019s interpretation is not supported by the statutory language. The date of \u201cmaximum medical improvement\u201d is specifically defined in the Workers\u2019 Compensation Act. Section 52-1-24.1. The definition neither provides nor implies that the date of MMI is the date of a judicial determination of the disability rating. See id.; see also Dona Ana Sav. & Loan Ass\u2019n, 115 N.M. at 594, 855 P.2d at 1058 (\u201ccourts not permitted to read into statute language that is not there\u201d).\nWe also note that Section 52-l-26(D) provides:\nD. If, on or after the date of maximum medical improvement, an injured worker returns to work at a wage equal to or greater than the worker\u2019s pre-injury wage, the worker\u2019s permanent partial disability rating shall be equal to his impairment and shall not be subject to the modifications calculated pursuant to Sections 52-1-26.1 through 52-1-26.4 NMSA 1978.\nThis statutory language demonstrates that the legislature contemplated a permanent partial disability rating after the date of MMI as defined in the Workers\u2019 Compensation Act. We further note that there is no provision in the Act specifically designating the date an employer or insurance carrier should use to assign age modification points. We agree with Employer that an insurance carrier may assign a disability rating which, if undisputed, determines benefits. In the event of a dispute, however, the disability rating is determined anew by the WCJ.\nThe WCJ correctly awarded Worker one point because Worker was forty-five years old at the time the WCJ made the disability rating. See \u00a7 52-l-26.2(B)(2) (one point awarded for age forty-five to forty-nine).\nConclusion\nFor the foregoing reasons, we affirm the WCJ\u2019s determination that Worker\u2019s \u201cusual and customary\u201d work was \u201cheavy,\u201d that Worker\u2019s shoulder injury is causally related to her work-related accident, and that Worker is entitled to one age modification point. We grant Worker her costs and attorney fees for this appeal and remand to the WCJ to determine the amount.\nIT IS SO ORDERED.\nFLORES and BUSTAMANTE, JJ., concur.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Henry J. Baca, Las Cruces, for WorkerAppellee.", "Leonard J. Piazza, Sager, Curran, Sturges & Tepper, P.C., Las Cruces, for Employer/Insurer-Appellants." ], "corrections": "", "head_matter": "906 P.2d 266\nOfelia LEVARIO, Worker-Appellee, v. YSIDRO VILLAREAL LABOR AGENCY and Mountain States Mutual Casualty Company, Employer/Insurer-Appellants.\nNo. 15596.\nCourt of Appeals of New Mexico.\nOct. 24, 1995.\nHenry J. Baca, Las Cruces, for WorkerAppellee.\nLeonard J. Piazza, Sager, Curran, Sturges & Tepper, P.C., Las Cruces, for Employer/Insurer-Appellants." }, "file_name": "0734-01", "first_page_order": 772, "last_page_order": 777 }