{ "id": 4249929, "name": "Felix E. BACA, Worker/Appellee/Cross-Appellant, v. LOS LUNAS COMMUNITY PROGRAMS and State Risk Management Division, Employer-Insurer/Appellant/Cross-Appellee", "name_abbreviation": "Baca v. Los Lunas Community Programs", "decision_date": "2010-12-15", "docket_number": "No. 29,108", "first_page": "198", "last_page": "206", "citations": [ { "type": "official", "cite": "149 N.M. 198" }, { "type": "parallel", "cite": "246 P.3d 1070" }, { "type": "parallel", "cite": "2011-NMCA-008" } ], "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": "2001-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352301 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0302-01" ] }, { "cite": "2000-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217163 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0794-01" ] }, { "cite": "2006-NMCA-054", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2544357 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0521-01" ] }, { "cite": "122 N.M. 381", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322342 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0381-01" ] }, { "cite": "1996-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "118 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563492 ], "weight": 2, "pin_cites": [ { "page": "685" }, { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0682-01" ] }, { "cite": "2006-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670086 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0030-01" ] }, { "cite": "2001-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352358 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0559-01" ] }, { "cite": "122 N.M. 195", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322339 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/122/0195-01" ] }, { "cite": "1996-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "118 N.M. 65", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563635 ], "weight": 2, "pin_cites": [ { "page": "67" }, { "page": "1016" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0065-01" ] }, { "cite": "579 F.Supp.2d 875", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3866513 ], "weight": 3, "pin_cites": [ { "page": "897-98" }, { "page": "899" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/579/0875-01" ] }, { "cite": "67 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715469 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "159-60", "parenthetical": "emphasis added" }, { "page": "682-83", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/67/0156-01" ] }, { "cite": "77 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802936 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "301" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0297-01" ] }, { "cite": "2008-NMCA-123", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4002574 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0782-01" ] }, { "cite": "2009-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243724 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0453-01" ] }, { "cite": "2009-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4242804 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0551-01" ] }, { "cite": "2007-NMSC-042", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692358 ], "weight": 3, "pin_cites": [ { "page": "\u00b67" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0243-01" ] }, { "cite": "2004-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428008 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0431-01" ] } ], "analysis": { "cardinality": 1105, "char_count": 26009, "ocr_confidence": 0.704, "pagerank": { "raw": 1.0782233143708005e-07, "percentile": 0.5618339138691097 }, "sha256": "1f15364db402e6f97e7d3981230314a821bee5670d9e9f633e1bcd738bf2df75", "simhash": "1:f3ef45d2fadd7774", "word_count": 4157 }, "last_updated": "2023-07-14T18:48:34.747020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and MICHAEL E. VIGIL, Judges." ], "parties": [ "Felix E. BACA, Worker/Appellee/Cross-Appellant, v. LOS LUNAS COMMUNITY PROGRAMS and State Risk Management Division, Employer-Insurer/Appellant/Cross-Appellee." ], "opinions": [ { "text": "OPINION\nROBLES, Judge.\n{1} Felix Baca (Worker) was awarded workers\u2019 compensation benefits for the care and treatment of post traumatic stress syndrome (PTSD), which he developed as a result of a sexual assault suffered during the course and scope of his employment. Los Lunas Community Programs (Employer) and State Risk Management Division (Insurer) (collectively, Defendants) appeal from the order of the workers\u2019 compensation judge (WCJ), claiming that the WCJ improperly concluded that Worker was psychologically unable to provide notice of the sexual assault within the fifteen-day time period required by NMSA 1978, Section 52-l-29(A) (1990) and improperly denied Defendants\u2019 request for an independent medical examination (IME) on the issue of causation. Worker filed a cross-appeal, arguing that the WCJ improperly excluded overtime pay from its award of temporary total disability (TTD) benefits under NMSA 1978, Section 52-1-25.1 (2005). We conclude that (1) Worker\u2019s notice of injury was timely, (2) the WCJ properly denied Defendants\u2019 request for an IME on the issue of causation, and (3) the WCJ improperly excluded overtime pay from its award of TTD benefits. Accordingly, we reverse in part and remand to the WCJ with instructions to recalculate Worker\u2019s compensation benefits.\nI. BACKGROUND\n{2} Employer provides housing facilities and treatment centers in Los Lunas, New Mexico for mentally and physically disabled persons (consumers). Worker is a \u201cPsych Tech\u201d at these facilities and his duties include supervising, caring for, and assisting the consumers both in the home and in the community. In December 2005, Worker was assigned to Cortez House, which housed George Rael, a convicted sex offender.\n{3} On December 10, 2005, Worker accompanied Rael on an overnight visit to Clovis, New Mexico. As part of his job duties, Worker was required to share a motel room with Rael. During the overnight visit, Rael, who is physically much larger than Worker, sexually assaulted and sodomized Worker. Afterward, Rael repeatedly threatened to hurt Worker if he ever told anyone about the incident. Given Rael\u2019s threats and Worker\u2019s shame and fear, Worker did not immediately report the sexual assault.\n{4} Approximately two days later, Rael attempted to commit suicide. Worker saved Rael\u2019s life by providing emergency medical aid and dialing 911. During an internal investigation into Rael\u2019s suicide attempt, Rael reported that Worker had sexually assaulted him during the trip to Clovis. Worker denied the allegation, but did not report that he had been sexually assaulted by Rael.\n{5} On December 29, 2005, nineteen days after the incident, Worker informed Employer of the sexual assault. Pursuant to the Employee Assistance Program, Employer referred Worker to Deborah Okon, a clinical psychiatrist, who diagnosed Worker with PTSD. Dr. Okon advised Worker to take time off from work in order to reduce his symptoms, which included anxiety, depression, panic attacks, an inability to eat or sleep, nausea, hyper-vigilance, and flashbacks. On April 1, 2006, Worker returned to work, but was assigned to a different facility because Dr. Okon believed that it would be psychologically harmful for Worker to have contact with Rael at Cortez House. At the new facility, Worker received less overtime hours and, therefore, less overtime pay than he typically earned prior to the sexual assault.\n{6} Following a trial on the merits, the WCJ found that the sexual assault was a workers\u2019 compensation accident, which arose out of Worker\u2019s employment, and awarded compensation benefits for the care and treatment of Worker\u2019s PTSD. However, the WCJ rejected Worker\u2019s claim that he was entitled to TTD benefits under Section 52-1-25.1(0 for lost overtime pay. Defendants\u2019 appeal and Worker\u2019s cross-appeal followed. Additional facts and procedural history will be provided as necessary.\nII. DISCUSSION\nA. Jurisdiction\n{7} As a preliminary matter, we address the issue of appellate jurisdiction. See Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, \u00b6 29, 135 N.M. 431, 89 P.3d 680 (\u201c[Jjurisdiction is basic to any appeal, and an appellate court may raise a jurisdictional issue sua sponte.\u201d (internal quotation marks and citation omitted)). Jurisdiction is a question of law, which we review de novo. City of Las Cruces v. Sanchez, 2007-NMSC-042, \u00b67, 142 N.M. 243, 164 P.3d 942 (\u201cThe extent of a court\u2019s appellate jurisdiction is a question of law, which we review de novo.\u201d).\n{8} Pursuant to Rule 12-601 NMRA, a direct appeal from an administrative agency must be filed within thirty days from the date of the order, decision, or action appealed from. However, NMSA 1978, Section 52-5-8(B) (1989) provides that \u201c[a] decision of the workers\u2019 compensation judge is reviewable by the court of appeals in the manner provided for other cases and is subject to stay proceedings as provided by the rules of civil procedure for the district courts[.]\u201d (Emphasis added.) In Bianco v. Horror One Prods., 2009-NMSC-006, \u00b6 10, 145 N.M. 551, 202 P.3d 810, the Supreme Court determined that Section 52-5-8 incorporates \u201cthe statutory and appellate scheme for taking appeals from district courts into workers\u2019 compensation cases.\u201d Thus, the WCJ, like the district court, retains jurisdiction for a period of thirty days to rule on post-judgment motions under NMSA 1978, Section 39-1-1 (1917), and \u201cthe time for filing a notice of appeal does not begin to run until the express denial of such motions\u201d under Rule 12-201(D) NMRA. Bianco, 2009-NMSC-006, \u00b6 12, 145 N.M. 551, 202 P.3d 810.\n{9} In this ease, the WCJ filed its final order on August 27, 2008. Sixteen days later, Defendants filed a motion for reconsideration. The WCJ denied Defendants\u2019 motion for reconsideration and, twenty days later, Defendants filed their notice of appeal. Pursuant to Section 39-1-1 and Rule 12-201, we conclude that Defendants\u2019 notice of appeal was timely filed. Accordingly, we have appellate jurisdiction to address the merits of Defendants\u2019 appeal.\nB. Standard of Review\n{10} \u2018We review factual findings of Workers\u2019 Compensation Administration judges under a whole record standard of review.\u201d DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 12, 146 N.M. 453, 212 P.3d 341. \u201cWhole record review involves a review of all the evidence bearing on the WCJ\u2019s decision in order to determine if there is substantial evidence to support the result.\u201d Flores v. McKay Oil Corp., 2008-NMCA-123, \u00b6 7, 144 N.M. 782, 192 P.3d 777. \u201cSubstantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency\u2019s decision, and we neither reweigh the evidence nor replace the fact finder\u2019s conclusions with our own.\u201d DeWitt, 2009-NMSC-032, \u00b6 12, 146 N.M. 453, 212 P.3d 341 (citation omitted).\n{11} We review the WCJ\u2019s legal conclusions regarding statutory construction de novo. Id. \u00b6 14.\nWe look first to the plain meaning of the statute\u2019s words, and we construe the provisions of the [Workers\u2019 Compensation Act (Act) ] together to produce a harmonious whole. After we determine the meaning of the statutes, we review the whole record to determine whether the WCJ\u2019s findings and award are supported by substantial evidence.\nId. (internal quotation marks and citation omitted).\nC. Notice\n{12} Worker reported the sexual assault to Employer on December 29, 2005, nineteen days after the incident. Worker testified that he did not report the sexual assault sooner because he felt scared and ashamed. Dr. Okon testified that Worker was psychologically unable to report the sexual assault due to\n[t]he shame, the intense fear that people go through when they go through a horrible, traumatic event. He was experiencing nausea and exhaustion because he couldn\u2019t sleep, he wasn\u2019t able to eat, he had just a whole gamut of both psychological and physical responses to this. And that\u2019s why I\u2019d say that he couldn\u2019t possibly \u2014 from the way he presented to me, he was not able to tell.\nAdditionally, Worker continued to work with Rael after the sexual assault, and Dr. Okon explained that Worker\u2019s \u201cfear of being with [Rael]\u201d was an \u201cadded component\u201d that contributed to his inability to report the incident.\n{13} The WCJ found that \u2018Worker, by reason of his injury, was prevented from giving notice within [fifteen] days of the assault\u201d and, therefore, Worker\u2019s late notice was excused under Section 52-l-29(A). The WCJ further found that Employer\u2019s failure to establish that Workers\u2019 Compensation Administration (WCA) posters had been posted conspicuously around Cortez House at the time of the incident tolled the notice period to sixty days under Section 52-l-29(B). Thus, under both Subsections A and B of the statute, the WCJ concluded that Worker had given timely notice according to law.\n{14} On appeal, Defendants claim that the evidence was insufficient to support the WCJ\u2019s conclusion that Worker had provided timely notice of his injury. Specifically, Defendants argue that the WCJ\u2019s reliance on Dr. Okon\u2019s expert medical testimony was flawed because Dr. Okon based her opinion \u201cexclusively on the subjective complaints and self-reports of her patient.\u201d Additionally, Defendants point out that there was no evidence establishing the \u201cverified absence\u201d of WCA posters at Cortez House, rather the witnesses simply could not recall whether such posters had been conspicuously posted.\n{15} Section 52-l-29(A) provides, in relevant part:\nAny worker claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the accident within fifteen days after the worker knew, or should have known, of its occurrence, unless, by reason of his injury or some other cause beyond his control, the worker is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done and at all events not later than sixty days after the occurrence of the accident.\n\u201cThe primary purpose of requiring the employee to give ... written notice is to enable the employer to investigate the facts while they are accessible and, if necessary, to employ doctors so as to speed recovery.\u201d Waymire v. Signal Oil Field Serv., Inc., 77 N.M. 297, 301, 422 P.2d 34, 37 (1966). However, \u201cthe law does not exact the impossible of the employee, lateness of both notice and claim may be excused for various reasons, including ... mental or physical incapacity, minority, and the like.\u201d Montell v. Orndorff, 67 N.M. 156, 159-60, 353 P.2d 680, 682-83 (1960) (emphasis added) (quoting 2 A. Larson, Larson\u2019s Workmen\u2019s Compensation Law at p. 251 [now vol. 2B, \u00a7 78.40 (1989) ]).\n{16} We conclude that the WCJ\u2019s factual finding with respect to Worker\u2019s inability to report the sexual assault prior to December 29, 2005, is amply supported by the record. Dr. Okon\u2019s expert medical testimony regarding Worker\u2019s mental state and Worker\u2019s testimony regarding his intense fear, shame, and trauma, both provide a sufficient factual basis for the WCJ\u2019s finding that Worker\u2019s PTSD prevented him from reporting the sexual assault within the statutory time period.\n{17} In support of their claim to the contrary, Defendants rely on Bragg v. ABN AMRO N. Am., Inc., 579 F.Supp.2d 875 (E.D.Mich.2008). In Bragg, the employee sought both short- and long-term disability benefits for post-polio syndrome and depression. The employer denied her claim for benefits after six peer reviews conducted by board-certified physicians, including a neuropsyehologist, a clinical psychologist, and a psychiatrist, found insufficient evidence of a functional impairment that would preclude the employee from performing the core elements of her occupation. Id. at 897-98. The United States District Court of the Eastern District of Michigan affirmed the denial of benefits because \u201cas the peer review physicians observed, there is a significant absence of objective medical documentation to support Plaintiffs physicians\u2019 opinions regarding her condition.\u201d Id. at 899.\n{18} We conclude that Bragg is distinguishable from the present ease. In Bragg, there was conflicting medical evidence in the record regarding the extent of the employee\u2019s disability. By contrast, in this case, there was no medical evidence to dispute or contradict Dr. Okon\u2019s expert opinion regarding Worker\u2019s mental impairment. In light of the undisputed medical evidence, we will not disturb the WCJ\u2019s determination that Worker\u2019s PTSD prevented him from giving notice within fifteen days of the sexual assault.\n{19} Additionally, we note that PTSD is a latent injury, which does not become manifest until sometime after the traumatic event. Flint v. Town of Bernalillo, 118 N.M. 65, 67, 878 P.2d 1014, 1016 (Ct.App.1994). \u201cOur case law illustrates that, for a latent injury, the statutory clock [does] not start ticking until the worker knew, or should have known by the exercise of reasonable diligence, that he or she had sustained a compensable injury.\u201d Garnsey v. Concrete Inc. of Hobbs, 1996-NMCA-081, \u00b6 12, 122 N.M. 195, 922 P.2d 577. The date of the injury, not the date of the accident, is determinative. Id.\n{20} Although the sexual assault occurred on December 10, 2005, Worker did not develop symptoms of PTSD until many days later. Indeed, the record reflects that Worker was able to continue to perform the duties of his employment, including supervising Rael, following the sexual assault. Given the latent nature of Worker\u2019s injury, we affirm the WCJ\u2019s conclusion that Worker\u2019s notice of injury was timely under the statute.\nD. IME\n{21} Worker filed his complaint seeking compensation benefits on May 10, 2007. After an unsuccessful attempt at mediation, trial was scheduled for January 25, 2008 and, subsequently, rescheduled for May 21, 2008. On May 1, twenty days before trial, Defendants moved for an IME under Section 52-1-51(A) (2005). Defendants claimed that an IME was \u201cnecessary to determine the nature and extent of any psychological diagnosis, the cause of any psychological diagnosis, as well as to determine Worker\u2019s status as it relates to employment, [maximum medical improvement (MMI) ] date and, if applicable, impairment rating.\u201d\n{22} On May 19, 2008, the trial court held a hearing on Defendants\u2019 motion. At the hearing, Worker argued that Defendants\u2019 \u201celeventh hour\u201d request for an IME should be denied because a trial delay, and the concomitant delay in the award of compensation benefits, would be prejudicial to Worker. The WCJ refused to delay the trial, but reserved the question of whether to order an IME after the presentation of evidence.\n{23} Following a trial on the merits, the WCJ awarded Worker compensation benefits and ordered an IME \u201cto address, among other things, Worker\u2019s [MMI], impairment[,] and ongoing need for medical treatment.\u201d Defendants filed a motion for reconsideration, claiming, in relevant part, that the WCJ improperly awarded compensation benefits in the absence of an IME on the issue of causation. The WCJ denied Defendants\u2019 motion for reconsideration, stating that it was \u201cabsolutely convinced that Worker was sexually assaulted while working for Employer on December 10, 2005.\u201d Thus, the scope of the IME was \u201climited to obtaining a medical opinion relating to [MMI], impairment, and future medical treatment.\u201d\n{24} On appeal, Defendants claim that they were entitled to an IME under Section 52-l-51(A) and that a trial delay would not have prejudiced Worker, who \u201cwas fully employed}] and[,] in addition to receiving his full salary (and occasional overtime), ... was also receiving medical insurance benefits through his employer.\u201d In Ramirez v. IBP Prepared Foods, 2001-NMCA-036, 130 N.M. 559, 28 P.3d 1100, this Court addressed the requirements for an IME under the former version of the statute. We noted that the Act sets \u201cforth an orderly process for the treatment and examination of injured workers that gives both parties the opportunity to control the medical treatment.\u201d Id. \u00b6 12.\nThe statute allows the party who did not make the first selection to choose a different health care provider after sixty days of treatment, without a showing that the initial provider was not providing reasonable medical care. Further, the statute sets out the procedure for other changes in the health care provider____ [E]ither party may petition for an IME in the event of a medical dispute.\nId. (citations omitted); see NMSA 1978, \u00a7 52-1^19 (1990). We concluded that a party could not circumvent this orderly process by seeking an IME under Section 52-1-51(A) in lieu of a change of a health care provider under Section 52-1-49. Accordingly, \u201cdisputes regarding medical issues must be between health care providers\u201d rather than between the parties. Ramirez, 2001-NMCA-036, \u00b6 16, 130 N.M. 559, 28 P.3d 1100; see Grine v. Peabody Natural Res., 2006-NMSC-031, \u00b6 26, 140 N.M. 30, 139 P.3d 190 (construing the prior version of the statute and holding that \u201c[t]he WCJ properly denied [e]mployer/[i]nsurer\u2019s request for an IME[] because[,] at the time of the request, there was no conflict between authorized medical providers as required by Section 52-1-51(A).\u201d)\n{25} We further held that causation was not a medical issue that would allow for an IME. Ramirez, 2001-NMCA-036, \u00b6 17, 130 N.M. 559, 28 P.3d 1100. We did \u201cnot believe that the [Legislature intended the IME statute to provide Employer with a medical expert to battle an existing medical provider on the issue of causation.\u201d Id. Such a construction of the statute would \u201ccreate} ] controversy where it would otherwise not exist and leads to expensive and time consuming litigation.\u201d Id.\n{26} In 2005, however, the Legislature amended Section 52-l-51(A), in relevant part, to provide that either party may petition a WCJ for an IME \u201c[i]n the event of a dispute between the parties concerning ... the cause of an injury or any other medical issue}.]\u201d 2005 N.M. Laws, ch. 150, \u00a7 1 (emphasis added). Under the plain language of the statutory amendment, a dispute between the parties concerning the issue of causation, such as the one at issue in this case, may be sufficient to warrant the grant of an IME. See Grine, 2006-NMSC-031, \u00b6 26, 140 N.M. 30, 139 P.3d 190 (discussing the statutory amendment).\n{27} Nonetheless, Defendants\u2019 request for an IME necessarily included a request for a continuance of the trial date. We review the WCJ\u2019s grant or denial of a motion for continuance for an abuse of discretion. See Lopez v. City of Albuquerque, 118 N.M. 682, 685, 884 P.2d 838, 841 (Ct.App.1994).\n{28} We conclude that the WCJ did not abuse its discretion by refusing to postpone trial for a second time. Defendants had knowledge of Dr. Okon\u2019s medical opinion regarding causation as early as May 10, 2007, when Worker submitted a letter from Dr. Okon explaining that Worker had PTSD because he \u201cwas traumatized (raped) by [Employer\u2019s] consumer while he was working for [Employer\u2019s] agency.\u201d Despite this knowledge, Defendants did not request an IME on the issue of causation until more than a year later, twenty days before trial was scheduled to commence. By this time, Worker had expended significant sums of money on prescription drugs and co-payments for the care and treatment of his injury. Additionally, Worker had been deprived of the overtime pay that he previously had earned prior to the sexual assault. See infra Part E. Under these circumstances, the WCJ reasonably could have found that Defendants\u2019 request for a continuance was untimely, and a delay in the commencement of trial would be prejudicial to Worker. We, therefore, affirm the WCJ\u2019s ruling.\nE. TTD\n{29} Prior to the sexual assault, Worker earned an average weekly wage of $884.31, which included $455.36 in regular hourly wages and $428.95 in overtime pay. After the sexual assault, Worker was reassigned to a different facility, where he received less overtime pay. Given the disparity between Worker\u2019s pre- and post-injury wages, Worker sought TTD benefits under Section 52-1-25.1.\n{30} The WCJ concluded that Worker was entitled to TTD benefits for \u201cthe time he was off work from approximately December 29, 2005 through April 1, 2006.\u201d Because Worker had used leave time during this period, the WCJ determined that\nWorker may elect to have his leave time reinstated and receive workers\u2019 compensation benefits for the time he was off work or, alternatively, Worker may continue to use leave time as taken and there shall be no deduction against the 500 weeks of benefits entitlement. Worker may not receive both workers\u2019 compensation benefits and leave time payment for the same week.\nThe WCJ rejected Worker\u2019s claim that he was entitled to TTD benefits after he returned to work on April 1, 2006, finding that \u2018Worker was not medically restricted from working his regular hours\u201d and that Employer had not reduced Worker\u2019s regular hours under Section 52-1-25.1.\n{31} On appeal, Worker claims that the WCJ improperly excluded overtime pay from its award of TTD benefits under Section 52-1-25.1. Employer responds that an award of overtime pay is discretionary under the statute and that the WCJ properly exercised its discretion because Worker failed to prove that he was offered reduced overtime hours because of his disability.\n{32} A worker is entitled to full TTD benefits if he is unable \u201cby reason of accidental injury arising out of and in the course of the worker\u2019s employment, to perform the duties of that employment prior to the date of the worker\u2019s [MMI].\u201d Section 52-1 \u2014 25.1(A); see Ortiz v. BTU Block & Concrete Co., 1996-NMCA-097, \u00b6 10, 122 N.M. 381, 925 P.2d 1 (recognizing that absent an applicable exception \u201cthe statute requires payment of full total disability benefits\u201d). A worker is entitled to reduced TTD benefits \u201cequal to two-thirds of the difference between the worker\u2019s pre-injury wage and the worker\u2019s post-injury wage ... [i]f prior to the date of [MMI], an injured worker\u2019s health care provider releases the worker to return to work and the employer offers work at less than the worker\u2019s pre-injury wage[.]\u201d Section 52-l-25.1(C). Subsection C furthers the legislative goals of the Act by encouraging employers to rehire injured workers and compensating workers who return to work at less than their pre-injury wage. Gurrule v. Dicaperl Minerals Corp., 2006-NMCA-054, \u00b6 7, 139 N.M. 521, 134 P.3d 808.\n{33} Compensation benefits, including TTD benefits, are calculated based on a worker\u2019s pre-injury \u201caverage weekly wage.\u201d NMSA 1978, Section 52-l-20(A) (1990); cf. Chavez v. S.E.D. Labs., 2000-NMSC-034, \u00b6 20, 129 N.M. 794, 14 P.3d 532 (using the terms \u201caverage weekly wage\u201d and \u201cpre-injury wage\u201d interchangeably). A worker\u2019s average weekly wage is \u201cthe weekly wage earned by the worker at the time of the worker\u2019s injury, including overtime pay and gratuities but excluding all fringe or other employment benefits and bonuses.\u201d Section 52-l-20(A) (emphasis added).\n{34} The WCJ determined that Worker was entitled to TTD benefits for the time period that he was unable to work due to his PTSD, December 29, 2005 through April 1, 2006, but excluded overtime pay from the amount of the award. Under Section 52-1-20(A), however, compensation benefits plainly include overtime pay. Accordingly, the WCJ erred by excluding overtime pay from the calculation of TTD benefits for this time period. Under Sections 52-l-20(A) and 52-1-25.1(A), Worker was entitled to full TTD benefits in the amount of his average weekly wage of $884.31.\n{35} Because overtime pay is compensable under the statute, we conclude that an injured worker is entitled to reduced TTD benefits under Section 52-1-25.1(0 if an employer offers reduced overtime hours after the worker returns to work. The worker need not prove that the reduction in his overtime hours was caused by his disability. Rather, the plain language of the statute creates a presumption that the worker\u2019s lost earning capacity is due to his work-related injury. See Section 52-1-25.1(0) (\u201cIf, prior to the date of [MMI], an injured worker\u2019s health care provider releases the worker to return to work and the employer offers work at less than the worker\u2019s pre-injury wage, the worker is disabled and shall receive temporary total disability compensation benefits equal to two-thirds of the difference between the worker\u2019s pre-injury wage and the worker\u2019s post-injury wage.\u201d (emphasis added)); State v. Guerra, 2001-NMCA-031, \u00b6 14, 130 N.M. 302, 24 P.3d 334 (\u201cThe word \u2018shall\u2019 as used in a statute is generally construed to be mandatory.\u201d).\n{36} In this case, Employer offered Worker significantly less overtime hours after he returned to work on April 1, 2006. Under Section 52-1-25.1(0), Worker is entitled to reduced TTD benefits in the amount of two-thirds the difference between his pre-injury average weekly wage and his post-injury wage until he reaches MMI.\nIII. CONCLUSION\n{37} We conclude that (1) the evidence was sufficient to support the WCJ\u2019s determination that Worker\u2019s PTSD prevented him from reporting the sexual assault within fifteen days, (2) the WCJ did not abuse its discretion by denying Defendants\u2019 motion for a continuance to permit an IME on the issue of causation, and (3) the WCJ improperly excluded overtime pay from its award of TTD benefits. Accordingly, we reverse the order of the WCJ in part and remand for recalculation of Worker\u2019s compensation benefits.\n{38} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and MICHAEL E. VIGIL, Judges.\n. In light of our conclusion, we need not decide whether the WCJ properly determined that the conspicuous absence of WCA posters tolled the notice provision under Subsection B.", "type": "majority", "author": "ROBLES, Judge." } ], "attorneys": [ "Gerald A. Hanrahan, Albuquerque, NM, for Appellee/Cross-Appellant.", "Hatcher & Tebo, P.A., Christopher J. Tebo, Scott P. Hatcher, Santa Fe, NM, for AppellanVCross-Appellee." ], "corrections": "", "head_matter": "2011-NMCA-008\n246 P.3d 1070\nFelix E. BACA, Worker/Appellee/Cross-Appellant, v. LOS LUNAS COMMUNITY PROGRAMS and State Risk Management Division, Employer-Insurer/Appellant/Cross-Appellee.\nNo. 29,108.\nCourt of Appeals of New Mexico.\nDec. 15, 2010.\nGerald A. Hanrahan, Albuquerque, NM, for Appellee/Cross-Appellant.\nHatcher & Tebo, P.A., Christopher J. Tebo, Scott P. Hatcher, Santa Fe, NM, for AppellanVCross-Appellee." }, "file_name": "0198-01", "first_page_order": 224, "last_page_order": 232 }