{ "id": 3783238, "name": "Christopher R. MOYA, Worker-Petitioner, v. CITY OF ALBUQUERQUE, Employer-Respondent", "name_abbreviation": "Moya v. City of Albuquerque", "decision_date": "2007-12-20", "docket_number": "No. 30,343", "first_page": "258", "last_page": "260", "citations": [ { "type": "official", "cite": "143 N.M. 258" }, { "type": "parallel", "cite": "175 P.3d 926" }, { "type": "parallel", "cite": "2008-NMSC-004" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "weight": 3, "pin_cites": [ { "page": "\u00b628" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "2006-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671362 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0077-01" ] }, { "cite": "70 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850768 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "336" }, { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/nm/70/0332-01" ] }, { "cite": "122 N.M. 350", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322332 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0350-01" ] }, { "cite": "1996-NMCA-087", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b624" } ], "opinion_index": 0 }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 4, "pin_cites": [ { "page": "127" }, { "page": "366" }, { "page": "128" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "120 N.M. 734", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559009 ], "weight": 8, "pin_cites": [ { "page": "736" }, { "page": "268" }, { "page": "737" }, { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0734-01" ] }, { "cite": "1997-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142234 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0489-01" ] }, { "cite": "161 P.3d 260", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "141 N.M. 763", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2007-NMCERT-005", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2007-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668496 ], "weight": 9, "pin_cites": [ { "page": "\u00b6\u00b62-3" }, { "page": "\u00b626" }, { "page": "\u00b6 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0617-01" ] } ], "analysis": { "cardinality": 541, "char_count": 9337, "ocr_confidence": 0.701, "pagerank": { "raw": 1.9598833750378632e-07, "percentile": 0.7378629024317634 }, "sha256": "04f7639eacd910541c3d50dcc77b03a968b6c94e123b0ccd174ca2460b009357", "simhash": "1:ecce64d9365a50f9", "word_count": 1487 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices." ], "parties": [ "Christopher R. MOYA, Worker-Petitioner, v. CITY OF ALBUQUERQUE, Employer-Respondent." ], "opinions": [ { "text": "OPINION\nSERNA, Justice.\n{1} The sole issue before us is whether substantial evidence supports the Workers\u2019 Compensation Judge\u2019s (WCJ) physical capacity finding that Christopher R. Moya\u2019s (Worker) job as a correctional officer required only \u201cmedium\u201d physical capacity. Based on our review of the whole record, we conclude that Woi'ker\u2019s job required \u201cheavy\u201d physical capacity. Accordingly, we reverse the Court of Appeals and remand to the WCJ for a recalculation of Worker\u2019s physical capacity modification.\nI. FACTUAL BACKGROUND\n{2} The facts of this case were sufficiently detailed in the underlying Court of Appeals opinion. See Moya v. City of Albuquerque, 2007-NMCA-057, \u00b6\u00b62-3, 141 N.M. 617, 159 P.3d 266. Worker was employed by the City of Mbuquerque (Employer) as a correctional officer at the Bernalillo County Metropolitan Detention Center. Id. \u00b6\u00b6 1, 2.\nHe was injured on February 25, 2004. Worker testified that three inmates, who he understood had started a riot at another correctional facility, were being transferred to the detention center. With full knowledge by supervisors, a \u201cwelcoming party\u201d had been planned to let the troublesome inmates know that such behavior would not be tolerated. Worker testified that the first inmate was brutally beaten by as many as fifteen or twenty correctional officers. Worker said he objected but was told by a superior officer to \u201cshut the hell up.\u201d While Worker was escorting a beaten inmate out of the area, Worker was injured when he was struck by a fellow officer in the neck and shoulder region. Worker\u2019s claim was that he was accidentally struck when the officer was trying to strike the inmate whom Worker was escorting.\nFollowing the incident, there was an internal affairs investigation. Worker said he was pressured by superior officers to alter his testimony about the beatings, but he said he testified truthfully about the beatings in the internal affairs investigation. Employer fired him on March 12, 2004. The WCJ found that Worker\u2019s termination was \u201cwithout good cause.\u201d Worker was unemployed until January 1, 2005, when he obtained employment with Cornell Corrections. The WCJ allowed Employer an offset for wages Worker received from his subsequent employer.\nId. \u00b6\u00b6 2-3.\n{3} Worker appealed that decision to the Court of Appeals, id. \u00b63, which held that Employer was only entitled to an offset for wages and benefits that it provided, not for wages paid by a subsequent employer. Id. \u00b6 18. Accordingly, the Court reversed the WCJ\u2019s compensation order and remanded for a recalculation of benefits. Id. \u00b6 18. We denied Employer\u2019s conditional cross-petition to review that issue.\n{4} The Court of Appeals also affirmed the portion of the WCJ\u2019s findings that Worker\u2019s job as a correctional officer required \u201cmedium\u201d physical capacity, as defined by NMSA 1978, Section 52-1-26.4(0(2) (1990, as amended through 2003), for purposes of determining Worker\u2019s residual physical capacity. Moya, 2007-NMCA-057, \u00b626. Worker appealed, and we granted certiorari to review the Court of Appeals opinion on this issue alone. Moya v. City of Albuquerque, 2007-NMCERT-005, 141 N.M. 763, 161 P.3d 260.\nII. DISCUSSION\n{5} Section 52-1-26.4 of the Workers\u2019 Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to-70 (1929, as amended), governs the determination of a worker\u2019s physical capacity modification for purposes of determining a worker\u2019s disability. The physical capacity modification is \u201cbased on a comparison of the usual and customary work the worker was performing prior to the injury, with the worker\u2019s physical capacity after the injury.\u201d Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, \u00b6 28, 123 N.M. 489, 943 P.2d 136; see also Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 736, 906 P.2d 266, 268 (Ct.App.1995). The WCJ found that Worker\u2019s usual and customary work as a correctional officer prior to injury required \u201cmedium\u201d physical capacity, as defined in Section 52-1-26.4(0(2). As he did before the Court of Appeals, Worker, in the instant appeal, relies on an exhibit containing a written job description of a correctional officer for the contention that his work should have been classified as \u201cheavy.\u201d See Moya, 2007-NMCA-057, \u00b6 23.\nA. Standard of Review\n{6} All workers\u2019 compensation cases are reviewed under a whole record standard of review. Levario, 120 N.M. at 737, 906 P.2d at 269 (citing Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.1988)). The physical capacity determination under Section 52-1-26.4 is an issue of fact, Medina v. Berg Constr., Inc., 1996-NMCA-087, \u00b624, 122 N.M. 350, 924 P.2d 1362, and we recognize that the fact finder has the prerogative to determine the weight and credibility to be given to testimony and evidence. Levario, 120 N.M. at 738, 906 P.2d at 270 (citing Montano v. Saavedra, 70 N.M. 332, 336, 373 P.2d 824, 826 (1962)). Our inquiry thus involves a review of \u201cboth 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.\u201d Id. at 737, 906 P.2d 266, 906 P.2d at 269 (citing Tallman, 108 N.M. at 128, 767 P.2d at 367).\nB. Worker\u2019s Job as a Correctional Officer Required \u201cHeavy\u201d Physical Capacity\n{7} The evidence before the WCJ was a written job description of a correctional officer provided by Worker. See Moya, 2007-NMCA-057, \u00b6 23. The job description contains three sections relevant to our determination, the same sections upon which the WCJ and the Court of Appeals focused. Id. \u00b6\u00b6 23-24. The section entitled \u201cESSENTIAL DUTIES\u201d states that a correctional officer must have the \u201c[ajbility to respond quickly to emergencies; including ... carrying an injured or unconscious person various distances to safety, up or down stairs and ladders.\u201d The sections entitled \u201cFREQUENCY\u201d and \u201cLIFTING\u201d set forth the frequency with which a correctional officer must lift various weights: lifting one to ten pounds occurs 67% of the time; lifting eleven to twenty pounds occurs 34% to 66% of the time; lifting twenty-one to thirty-five pounds occurs 11% to 33% of the time; lifting thirty-six to fifty pounds occurs 1% to 10% of the time; and lifting more than fifty pounds occurs 1% to 10% of the time.\n{8} For purposes of the physical capacity determination, work is deemed \u201cheavy\u201d when the worker must have \u201cthe ability to lift over fifty pounds occasionally or up to fifty pounds frequently.\u201d Section 52-1-26.4(0(1). \u201cMedium\u201d work requires \u201cthe ability to lift up to fifty pounds occasionally or up to twenty-five pounds frequently.\u201d Section 52-1-26.4(0(2).\n{9} The Court of Appeals determined that \u201ca correctional officer was required to lift up to thirty-five pounds frequently and more than thirty-five pounds rarely.\u201d Moya, 2007-NMCA-057, \u00b6 24. As the Court of Appeals reasoned, \u201c[t]he lifting requirements detailed by the exhibit establish that the vast majority of the lifting involved weight less than thirty-five pounds and that lifting more than thirty-five pounds was involved rarely, 10% of the time or less.\u201d Id. Therefore, the Court of Appeals concluded that Worker\u2019s work as a correctional officer required \u201cmedium\u201d physical capacity. Id.\n{10} Our review of the record leads to a different conclusion. According to the job description, Worker could have been required to lift more than fifty pounds 1% to 10% of the time and on an emergency basis when carrying injured or unconscious persons. Thus, Worker\u2019s job as a correctional officer required him to lift more than fifty pounds at times. Regardless of how rarely that might have occurred, the capacity to lift more than fifty pounds was never contemplated by the statutory classification of \u201cmedium\u201d physical capacity. See \u00a7 52-1-26.4(C)(2). \u201c \u2018[W]e will not read into a statute ... language which is not there, particularly if it makes sense as written.\u2019 \u201d Cobb v. State Canvassing Bd., 2006-NMSC-034, \u00b6 34, 140 N.M. 77, 140 P.3d 498 (quoting Regents of Univ. of N.M. v. N.M. Fed\u2019n of Teachers, 1998-NMSC-020, \u00b628, 125 N.M. 401, 962 P.2d 1236). Therefore, we conclude that substantial evidence does not support either the WCJ\u2019s or the Court of Appeals\u2019 conclusion that Worker\u2019s work as a correctional officer required only \u201cmedium\u201d physical capacity. Rather, the evidence of record establishes that Worker\u2019s work required \u201cheavy\u201d physical capacity. See \u00a7 52-1-26.4(C)(1).\nIII. CONCLUSION\n{11} Our review of the whole record reveals that the evidence does not support the WCJ\u2019s determination that Worker\u2019s job as a correctional officer required only \u201cmedium\u201d physical capacity. Rather, substantial evidence supports the conclusion that Worker\u2019s job required \u201cheavy\u201d physical capacity. Therefore, we reverse the Court of Appeals and remand to the WCJ for a recalculation of Worker\u2019s physical capacity modification in accordance with this Opinion.\n{12} IT IS SO ORDERED.\nWE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices.", "type": "majority", "author": "SERNA, Justice." } ], "attorneys": [ "Gerald A. Hanrahan, Mbuquerque, NM, for Petitioner.", "Butt, Thornton & Baehr, P.C., Carlos G. Martinez, Emily A. Franke, Mbuquerque, NM, for Respondent." ], "corrections": "", "head_matter": "2008-NMSC-004\n175 P.3d 926\nChristopher R. MOYA, Worker-Petitioner, v. CITY OF ALBUQUERQUE, Employer-Respondent.\nNo. 30,343.\nSupreme Court of New Mexico.\nDec. 20, 2007.\nGerald A. Hanrahan, Mbuquerque, NM, for Petitioner.\nButt, Thornton & Baehr, P.C., Carlos G. Martinez, Emily A. Franke, Mbuquerque, NM, for Respondent." }, "file_name": "0258-01", "first_page_order": 294, "last_page_order": 296 }