{ "id": 322240, "name": "Olga JURADO, Worker-Appellee, v. LEVI STRAUSS & COMPANY, Self-Insured, Employer-Appellant", "name_abbreviation": "Jurado v. Levi Strauss & Co.", "decision_date": "1996-10-09", "docket_number": "No. 17074", "first_page": "519", "last_page": "523", "citations": [ { "type": "official", "cite": "122 N.M. 519" }, { "type": "parallel", "cite": "927 P.2d 1057" } ], "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": "118 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563436 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "277" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0273-01" ] }, { "cite": "121 N.M. 258", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566672 ], "weight": 2, "pin_cites": [ { "page": "264" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0258-01" ] }, { "cite": "882 P.2d 21", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1994, "opinion_index": 0 }, { "cite": "118 N.M. 430", "category": "reporters:state", "reporter": "N.M.", "year": 1994, "opinion_index": 0 }, { "cite": "118 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563589 ], "weight": 2, "pin_cites": [ { "page": "352" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0346-01" ] }, { "cite": "121 N.M. 439", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566480 ], "weight": 2, "pin_cites": [ { "page": "442" }, { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0439-01" ] }, { "cite": "118 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563551 ], "weight": 2, "pin_cites": [ { "page": "453-54" }, { "page": "44-45" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0449-01" ] }, { "cite": "889 P.2d 203", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.M. 168", "category": "reporters:state", "reporter": "N.M.", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.M. 199", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561356 ], "weight": 3, "pin_cites": [ { "page": "202" }, { "page": "237" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0199-01" ] }, { "cite": "120 N.M. 813", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558984 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "815" }, { "page": "996" }, { "parenthetical": "question of finality was jurisdictional and would be raised by the Court sua sponte" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0813-01" ] }, { "cite": "905 P.2d 1119", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1995, "opinion_index": 0 }, { "cite": "120 N.M. 715", "category": "reporters:state", "reporter": "N.M.", "year": 1995, "opinion_index": 0 }, { "cite": "120 N.M. 801", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558963 ], "weight": 4, "pin_cites": [ { "page": "802" }, { "page": "206" }, { "page": "804" }, { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0801-01" ] } ], "analysis": { "cardinality": 572, "char_count": 10683, "ocr_confidence": 0.694, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.2994166841387278 }, "sha256": "d20146b2d89a5db482aedc178219c0ba25ca00761e82a1a774561e0ce13c24d4", "simhash": "1:b5466f673e8661b2", "word_count": 1701 }, "last_updated": "2023-07-14T15:23:55.699803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "APODACA, C.J., and BOSSON, J., concur." ], "parties": [ "Olga JURADO, Worker-Appellee, v. LEVI STRAUSS & COMPANY, Self-Insured, Employer-Appellant." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\n1. Employer appeals the order of the Workers\u2019 Compensation Judge (WCJ) entered after remand from this Court. The prior opinion in this case reversed the issue of the admissibility of Dr. Fogel\u2019s testimony, which had established a whole body impairment rating based on Worker\u2019s neck and shoulder condition. Jurado v. Levi Strauss & Co., 120 N.M. 801, 802, 907 P.2d 205, 206 (Ct.App.), cert. denied, 120 N.M. 715, 905 P.2d 1119 (1995). After remand, the WCJ considered the testimony of other doctors and awarded permanent partial disability benefits and attorney fees to Worker. The WCJ also ordered Employer\u2019s attorney to file a pleading with the Workers\u2019 Compensation Administration WCA) stating the hours expended on this case and the amount charged. Employer appealed.\n2. We reverse the award of permanent partial disability benefits and reverse and remand the award of Worker\u2019s attorney fees for reconsideration. We affirm the portion of the order requiring Employer\u2019s attorney to file a pleading evidencing Employer\u2019s attorney fees.\n3. Before reaching the merits of the case, we must first address whether the order appealed from is a final, appealable order. See, e.g., Britt v. Phoenix Indem. Ins. Co., 120 N.M. 813, 815, 907 P.2d 994, 996 (1995). The parties had been asked to brief the issue of finality, raised in Worker\u2019s motion to dismiss the appeal. Although Worker abandons this issue, we note this Court\u2019s jurisdiction over the appeal. See id. (question of finality was jurisdictional and would be raised by the Court sua sponte).\n4. The order appealed from grants the parties leave to petition the WCJ for Worker to undergo an independent medical examination (IME) to determine any physical impairment to Worker\u2019s neck and shoulder. The order, however, disposes of all controversies pending before the WCJ. See Corn v. New Mexico Educators Fed. Credit Union, 119 N.M. 199, 202, 889 P.2d 234, 237 (Ct.App.1994), cert. denied, 119 N.M. 168, 889 P.2d 203 (1995). The order is final for purposes of appeal.\n5. We next consider whether there is substantial evidence to support the award of permanent partial disability benefits rather than scheduled injury benefits. The opinion in the prior appeal stated, \u201cFor Worker to receive permanent partial disability benefits under [NMSA 1978,] Section 52-1-42 [Repl. Pamp.1991], rather than scheduled injury benefits under [NMSA 1978] Section 52-1\u201413 [Repl.Pamp.1991], Worker must show that (1) she is totally disabled or (2) she has suffered a separate and distinct impairment to a nonscheduled body part.\u201d Jurado, 120 N.M. at 804, 907 P.2d at 208. Later in the opinion this Court reiterated, \u2018Worker had the burden of establishing a separate and distinct impairment to a nonscheduled body part through compliance with the Act.\u201d Id. at 806, 907 P.2d at 210; see also Gomez v. Bernalillo County Clerk\u2019s Office, 118 N.M. 449, 453-54, 882 P.2d 40, 44-45 (Ct.App.1994) (where the worker establishes separate impairment to other body part or where total disability results, scheduled injury section is inapplicable).\n6. NMSA 1978, Section 52-l-26(B) (Repl. Pamp.1991) (effective Jan. 1, 1991) defines permanent partial disability as \u201ca condition whereby a worker, by reason of injury arising out of and in the course of employment, suffers a permanent impairment.\u201d The legislature defined impairment as \u201can anatomical or functional abnormality existing after the date of maximum medical improvement as determined by a medically or scientifically demonstrable finding and based upon the most recent edition of the American medical association\u2019s guide to the evaluation of permanent impairment.\u201d NMSA 1978, \u00a7 52-1-24(A) (Repl.Pamp.1991) (effective Jan. 1, 1991).\n7. The WCJ entered findings adopting the medical opinion of Dr. Jakins to establish that Worker is suffering a whole body impairment and disability. The WCJ also found that Dr. Allegretto\u2019s impairment rating of 6% to the whole person established a whole body disability. The WCJ took judicial notice of the American Medical Association (AMA) guidelines and calculated permanent partial disability based on a 6% whole body impairment rating. The WCJ seemed to recognize, however, that there was no evidence of an impairment rating to the neck or shoulders since it expressly allowed the parties to petition for an IME to establish an impairment rating, if any, for Worker\u2019s neck and shoulder condition.\n8. Neither Dr. Jakins\u2019 nor Dr. Allegretto\u2019s testimony established an impairment rating for any nonscheduled member. Dr. Jakins testified in his deposition, \u201cI didn\u2019t do any impairment ratings on this lady at all.\u201d Dr. Allegretto\u2019s letters calculating the impairment rating also fail to establish an impairment rating for any nonscheduled member.\n9. In his first letter, Dr. Allegretto states that an impairment rating cannot be assigned to the neck complaints and trigger points, and that he cannot provide an impairment rating for the headaches because that is not his area of expertise. The whole body impairment rating of 15% calculated in this first letter was revised in the second letter to a 6% impairment rating for the whole person based on the neuralgic pain in Worker\u2019s bilateral thumbs. He also states that it is unlikely that Worker will be able to return to her job and \u201cwill probably require partial permanent disability based on the impairment rating available.\u201d Despite the legally conclusive language that Worker should be entitled to permanent partial disability benefits, Dr. Allegretto\u2019s impairment rating was based on injuries to scheduled members. Based on this evidence, Worker is limited to benefits from the scheduled injury section.\n10. Although there is evidence of a separate and distinct injury in the nature of disabling pain to nonscheduled members, Worker was required to establish an impairment rating for the nonscheduled members. See Jurado, 120 N.M. at 806, 907 P.2d at 210. The only impairment rating, stated by Dr. Allegretto, is based on the neuralgic pain in Worker\u2019s bilateral thumbs, which Dr. Allegretto extrapolated into a percentage of whole body impairment.\n11. Despite evidence that Worker suffered an injury to a nonscheduled member in the form of disabling pain to her neck, there is no evidence establishing an impairment for the neck or shoulder condition under the AMA guidelines. Since there is no evidence of impairment to a nonscheduled member, there is no evidence to support the award of permanent partial disability. Cf. Peterson v. Northern Home Care, 121 N.M. 439, 442, 912 P.2d 831, 834 (Ct.App.1996) (permanent partial disability based on - secondary mental impairments did not require a numerical rating since the AMA discourages, if not prohibits, percentage ratings for mental impairments; definition of secondary mental impairment is a mental illness triggered by a physical impairment).\n12. We reverse and remand for the entry of an award of scheduled injury benefits based on the admissible evidence presented to the WCJ. We emphasize, however, that nothing in this opinion precludes Worker from obtaining an IME to establish an impairment rating for her neck and shoulder condition as provided in the WCJ\u2019s order.\nBecause we reverse the award of benefits, we also reverse and remand for a reconsideration of the award of attorney fees. See, e.g., Murphy v. Duke City Pizza, Inc., 118 N.M. 346, 352, 881 P.2d 706, 712 (Ct.App.), cert. denied, 118 N.M. 430, 882 P.2d 21 (1994); see also Cordova v. Taos Ski Valley, Inc., 121 N.M. 258, 264, 910 P.2d 334, 340 (Ct.App.1995) (calculation of attorney fees in workers\u2019 compensation cases must consider applicable statutes and other factors which are individual to each ease, causing fees to be of necessity individual).\n13. Employer also challenges the portion of the order requiring Employer\u2019s attorney to file a pleading evidencing Employer\u2019s attorney fees. In its argument, Employer relies on NMSA 1978, Section 52-1-54(1) (Cum. Supp.1996), which limits the amount of attorney fees payable, and on New Mexico Workers\u2019 Compensation Administration Rule 92.3.24(E) (Oct.1993), which provides for the employer\u2019s attorney to certify that the total attorney fees incurred in defense of the claim does not exceed $12,500.\n14.Employer in this case filed a certificate pursuant to WCA Rule 92.3.24(E). Employer argues that, because there is no express provision stating the WCJ may require more specific information from an employer\u2019s attorney, the WCJ has no authority to enter such an order. Worker argues, by analogy to administrative law cases, that the WCJ\u2019s power is not limited to what is expressly authorized by statute, but includes those powers that may be fairly implied from the statutes. See generally AA Oilfield Serv., Inc. v. New Mexico State Corp. Comm\u2019n, 118 N.M. 273, 277, 881 P.2d 18, 22 (1994).\n15. The legislative policy codified in NMSA 1978, Section 52-1-54 (Cum.Supp. 1996), is to discourage excessive litigation of compensation claims. See generally Corn, 119 N.M. at 211, 889 P.2d at 246 (Apodaca, J., specially concurring). We note that in awarding Worker attorney fees, the WCJ entered a finding that the issues in this case were contested to a more than average degree.\n16. We determine that a WCJ has implicit authority under Section 52-1-54(1) to require an employer\u2019s counsel to file a pleading stating the number of hours expended on a case and the amount charged as legal fees as a means of facilitating the legislative policy behind Section 52-1-54. The fact that the rules adopted by the WCA provide one method of verifying the amount of fees does not preclude the WCJ from employing other methods reasonably calculated to achieve the same end. The WCJ\u2019s order in this case did not exceed the WCJ\u2019s authority.\n17. We affirm the portion of the order requiring Employer\u2019s counsel to evidence the amount of time expended and the amount of fees charged in this case. We reverse the award of permanent partial disability benefits, and reverse and remand for reconsideration the award of attorney fees to Worker. Pursuant to the WCJ\u2019s order, however, Worker may petition the WCJ to undergo an IME to determine any physical impairment to Worker\u2019s neck and shoulder conditions and seek a modification of benefits under Section 52-1-56 (Repl. NMSA 1978, Pamp.1991).\n18. IT IS SO ORDERED.\nAPODACA, C.J., and BOSSON, J., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "James G. Chakeres, Albuquerque, for Appellee.", "Bryan D. Evans, Atwood, Malone, Turner & Sabin, P.A., Roswell, for Appellant." ], "corrections": "", "head_matter": "927 P.2d 1057\nOlga JURADO, Worker-Appellee, v. LEVI STRAUSS & COMPANY, Self-Insured, Employer-Appellant.\nNo. 17074.\nCourt of Appeals of New Mexico.\nOct. 9, 1996.\nJames G. Chakeres, Albuquerque, for Appellee.\nBryan D. Evans, Atwood, Malone, Turner & Sabin, P.A., Roswell, for Appellant." }, "file_name": "0519-01", "first_page_order": 569, "last_page_order": 573 }