1

Certiorari Granted, March 1, 2013, No. 33,993

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-036

Filing Date: December 13, 2012 

Docket No. 31,438

SHERRIE FOWLER,

Worker-Appellee,

v.

VISTA CARE and

AMERICAN HOME INSURANCE COMPANY,

Employer/Insurer-Appellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Victor S. Lopez, Workers’ Compensation Judge

Dunn Law Offices

Rod Dunn

Albuquerque, NM

for Appellee

Butt Thornton & Baehr PC

Emily A. Franke

David N. Whitham

Albuquerque, NM

for Appellants

OPINION

WECHSLER, Judge.

{1} Vista Care and American Home Insurance Co. (Vista Care) appeal from a

compensation order entered in the Workers’ Compensation Administration (WCA) awarding

Sherrie Fowler (Worker) temporary total disability benefits. We consider various provisions
2

of the Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended

through 2007), in determining whether (1) temporary total disability benefits are subject to

a durational limit, (2) a previous determination that a worker is at maximum medical

improvement precludes a finding that the worker was no longer at maximum medical

improvement at a later date, and (3) Vista Care is entitled to a credit against the temporary

total disability benefits for previously paid lump sum payments for future permanent partial

disability benefits. We hold that (1) temporary total disability benefits are subject to the

700-week durational limit found in Section 52-1-47(A); (2) the Workers’ Compensation

Judge (WCJ) did not err in concluding that Worker was not at maximum medical

improvement on March 14, 2007, despite a previous finding of maximum medical

improvement; and (3) on remand, the WCJ should consider how the 700-week limitation

period affects the application of any potential credit for lump sum advances of permanent

partial disability benefits. Accordingly, we reverse in part and affirm in part, and we remand

to the WCA for further proceedings consistent with this opinion.

BACKGROUND

{2} On April 7, 2003, Worker suffered a back injury arising out of, and occurring in the

course of, her employment with Vista Care. As a result of her injury, Worker underwent a

spinal fusion in October 2003. Thereafter, Worker continued to receive medical care,

including multiple spinal surgeries. On January 11, 2006, Dr. James Thomas found that

Worker had reached maximum medical improvement. As a result, Worker filed a petition

for a lump sum payment of permanent partial disability benefits for payment of debt,

pursuant to NMSA 1978, Section 52-5-12(C) (2009). The WCJ granted the petition on April

27, 2006, finding that Worker had reached maximum medical improvement prior to April

27, 2006.

{3} Worker continued to receive treatment on her injured back and, on February 7, 2007,

Dr. Andrew Cash examined Worker. Dr. Cash’s evaluation revealed that Worker suffered

from an adjacent level breakdown and stenosis and recommended that Worker undergo an

extension of the previous fusion with decompression. Worker saw Dr. Cash again on March

14, 2007, and Dr. Cash recommended an anterior-posterior lumbar fusion of L3-4. After the

parties disagreed whether the treatment suggested by Dr. Cash related to the original injury,

Dr. Jose Reyna provided an independent medical evaluation on October 22, 2009, and

concluded that the new injury related to the original injury and that Worker would benefit

from the additional treatment suggested by Dr. Cash. Worker underwent the surgery on July

13, 2010. The parties have stipulated that Worker has yet to reach maximum medical

improvement following the July 13, 2010 surgery.

{4} In the compensation order entered on June 30, 2011 that is the subject of this appeal,

the WCJ concluded that Worker was no longer at maximum medical improvement as of

March 14, 2007. The WCJ awarded temporary total disability to Worker beginning March

14, 2007, the date at which the WCJ determined that Worker was no longer at maximum

medical improvement, through the date Worker reaches maximum medical improvement
3

from the July 13, 2010 surgery. The WCJ further concluded that the temporary total

disability benefits were not subject to the 500- or 700-week durational limit found in Section

52-1-42(A), and, therefore, Worker could be paid benefits for an indefinite period of time.

Finally, the WCJ concluded that Vista Care was not entitled to a credit for the lump sum

advances of permanent partial disability benefits to apply to the temporary total disability

benefits it awarded.

{5} On appeal, Vista Care argues that the WCJ (1) erred in holding that temporary total

disability benefits are not subject to the 500- or 700-week limit in Section 52-1-42(A) or the

700-week limit found in Section 52-1-47(A) and can potentially be payable for Worker’s

lifetime; (2) erred in concluding that Worker was no longer at maximum medical

improvement as of March 14, 2007, despite finding that Worker was at maximum medical

improvement on January 11, 2006; and (3) abused his discretion in holding that Vista Care

is not entitled to a credit for the lump sum advances of future payments for permanent partial

disability benefits when applied to the additional temporary total disability benefits.

STANDARD OF REVIEW

{6} “All workers’ compensation cases are reviewed under a whole record standard of

review.” Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926.

When our review consists of reviewing a “WCJ’s interpretation of statutory requirements,

we apply a de novo standard of review.” DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032,

¶ 14, 146 N.M. 453, 212 P.3d 341. “We look first to the plain meaning of the statute’s

words, and we construe the provisions of the [Workers’ Compensation] 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’s findings and award are supported by

substantial evidence.” Id. (internal quotation marks and citation omitted). “When an agency

that is governed by a particular statute construes or applies that statute, the court will begin

by according some deference to the agency’s interpretation.” Morningstar Water Users

Ass’n v. N.M. Pub. Util. Comm’n, 120 N.M. 579, 583, 904 P.2d 28, 32 (1995). However, we

are not bound by the agency’s interpretation and may substitute our “own independent

judgment for that of the agency because it is the function of the courts to interpret the law.”

Id.

TEMPORARY TOTAL DISABILITY BENEFIT DURATION LIMITS

{7} As pertinent to this appeal, the Workers’ Compensation Act provides for

compensation benefits for permanent partial disability in Section 52-1-42 and for total

disability in Section 52-1-41. Both sections contain limits on the duration of the benefits.

{8} In relevant part, Section 52-1-42(A) states that: 

For permanent partial disability . . . [t]he duration of partial disability

benefits shall depend upon the extent and nature of the partial disability,
4

subject to the following:

(1) where the worker’s percentage of disability is equal to

or greater than eighty, the maximum period is seven hundred weeks;

(2) where the worker’s percentage of disability is less than

eighty, the maximum period is five hundred weeks[.]

Section 52-1-41(A) provides that, with exceptions that are not relevant to this appeal, for

total disability, a “worker shall receive compensation benefits for the remainder of his life.”

{9} In addition to these limitation provisions stated together with specific types of

benefits, the Workers’ Compensation Act contains a general provision concerning the

limitation of compensation benefits. Section 52-1-47 provides in relevant part 

except for provision of lifetime benefits for total disability awarded pursuant

to Section 52-1-41 . . . :

A. compensation benefits for any combination of disabilities or

any combination of disabilities and death shall not be payable for a period in

excess of seven hundred weeks[.]

{10} The WCJ relied on Section 52-1-41(A) for the proposition that the temporary total

disability benefits are potentially subject to payment over Worker’s lifetime. The WCJ

determined that Section 52-1-41(A) clearly and unambiguously applies to both permanent

and temporary “total disability.” In the WCJ’s view, the “generic” term “total disability”

encompasses both “the temporary and permanent components of the category.”

{11} In its entirety, Section 52-1-41(A) provides:

For total disability, the worker shall receive, during the period of that

disability, sixty-six and two-thirds percent of his average weekly wage, and

not to exceed a maximum compensation of eighty-five percent of the average

weekly wage in the state, a week, effective July 1, 1987 through December

31, 1999, and thereafter not to exceed a maximum compensation of one

hundred percent of the average weekly wage in the state, a week; and to be

not less than a minimum compensation of thirty-six dollars ($36.00) a week.

Except as provided in Subsections B and C of this section, the worker shall

receive compensation benefits for the remainder of his life.

{12} The first sentence of Section 52-1-41(A) establishes the formula to set the amount

of compensation benefits that a worker may receive for total disability “during the period

of that disability.” (Emphasis added.) The formula is used to calculate temporary total

disability as well as permanent total disability benefits. Cf. Breen v. Carlsbad Mun. Sch.,
5

2005-NMSC-028, ¶ 1, 138 N.M. 331, 120 P.3d 413 (reviewing a case in which the worker

received benefits under Section 52-1-41(A) for an injury resulting in a temporary total

disability). By the express language of the statute, it applies only for benefits during the

period of the disability. Section 52-1-41(A). The second sentence, on the other hand, states

that, with exceptions for mental impairment and death, the worker is entitled to receive

compensation benefits “for the remainder of his life.” Section 52-1-41(A). Because this

sentence is contained in Section 52-1-41(A) that begins “[f]or total disability,” we presume

that it relates to “total disability” and means that a worker shall receive compensation

benefits for total disability for the remainder of the worker’s life. See Reule Sun Corp. v.

Valles, 2010-NMSC-004, ¶ 30, 147 N.M. 512, 226 P.3d 611 (stating that the placement of

language at the beginning of a clause evinces legislative intent that the clause is meant to

apply to the statute in whole). Nothing in Section 52-1-41(A) explains the connection

between a worker’s entitlement to receive the compensation benefits calculated in the first

sentence of Section 52-1-41(A) for the period of the total disability and the worker’s

entitlement in the second sentence to receive compensation benefits for a total disability for

the remainder of the worker’s life. The language providing “benefits for the remainder of

his life” in the second sentence is inconsistent with temporary total disability, which by

definition is temporary and contemplates a worker reaching maximum medical improvement

and returning to work. See § 52-1-25.1(A), (B); see also Madrid v. St. Joseph Hosp., 1996-

NMSC-064, ¶ 7, 122 N.M. 524, 928 P.2d 250 (“Eligibility for the various temporary benefits

provided under the Act ends at the date of [maximum medical improvement].”). Due to this

ambiguity, we focus our construction of Section 52-1-41(A) outside the plain meaning,

focusing on the purpose of the Workers’ Compensation Act. See T-N-T Taxi, Ltd. v. N.M.

Pub. Regulation Comm’n, 2006-NMSC-016, ¶ 5, 139 N.M. 550, 135 P.3d 814 (“[S]tatutes

are given effect as written without room for construction unless the language is doubtful,

ambiguous, or adherence to the literal use of the words would lead to injustice, absurdity or

contradiction, in which case the statute is to be construed according to its obvious

purpose.”).

{13} We interpret statutes to fulfill the intent of the Legislature. Vescio v. Wolf, 2009-

NMCA-129, ¶ 13, 147 N.M. 374, 223 P.3d 371. By enacting the Workers’ Compensation

Act, the Legislature intended “to protect injured workers from becoming dependent on

public welfare and to provide them with some financial security.” Madrid, 1996-NMSC064, ¶ 8. To achieve this purpose, the Workers’ Compensation Act sets forth grades of

disability. Thus, a permanent total disability is either (1) the permanent and total loss or loss

of use of both hands, arms, feet, legs, or eyes, or any two of them, or (2) a traumatic brain

injury causing a certain degree of permanent impairment. Section 52-1-25. A permanent

partial disability is a permanent impairment. Section 52-1-26(B). Further, workers with a

compensable permanent partial disability “should be provided with the opportunity to return

to gainful employment as soon as possible with minimal dependence on compensation

awards.” Section 52-1-26(A). 

{14} The Workers’ Compensation Act therefore draws a sharp distinction between

permanent total disability and permanent partial disability. It does not contemplate that
6

workers suffering a compensable permanent total disability must return to work. To this

end, workers with a permanent total disability receive lifetime compensation benefits.

Section 52-1-41(A). A permanent partial disability, on the other hand, justifies only the

maximum of 500 or 700 weeks of compensation benefits in accordance with the legislative

purpose of minimal dependence on compensation awards. Section 52-1-42(A)(1), (2).

{15} In addition, the Workers’ Compensation Act ties a worker’s entitlement to permanent

partial disability benefits and temporary total disability benefits to the worker’s achieving

maximum medical improvement. Section 52-1-24(A) defines “impairment” as “an

anatomical or functional abnormality existing after the date of maximum medical

improvement.” Further, temporary total disability is defined in relation to maximum medical

improvement. It is “the inability of a worker, by reason of accidental injury arising out of

and in the course of the worker’s employment, to perform the duties of that employment

prior to the date of the worker’s maximum medical improvement.” Section 52-1-25.1(A).

A worker is entitled to receive temporary total disability benefits if the worker is released

to work prior to reaching maximum medical improvement and returns to work at less than

the worker’s pre-injury wage. Section 52-1-25.1(C).

{16} This legislative scheme of the Workers’ Compensation Act resolves the issue before

us. See DeWitt, 2009-NMSC-032, ¶ 14. Although the Legislature used the word “total”

with respect to temporary total disability, it did not equate it with the “total disability” that

entitles a worker to benefits for the worker’s remaining life. Because a designation of

temporary total disability contemplates that the worker will reach maximum medical

improvement and return to work, it would be inconsistent for the Legislature to have

intended that workers receiving temporary total disability benefits be paid for the remainder

of the worker’s life. Such an interpretation is inconsistent with the statutory scheme of being

able to return to work “with minimal dependence on compensation awards.” Section 52-1-

26(A). Indeed, this inconsistency is underscored by the temporary nature of temporary total

disability benefits that are subject to a subsequent determination of maximum medical

improvement. See Montoya v. Herrera, 2012-NMSC-011, ¶ 11, 276 P.3d 952 (“We must

take care to avoid adoption of a construction that would render the statute’s application

absurd or unreasonable or lead to injustice or contradiction.” (internal quotation marks and

citation omitted)). Although Section 52-1-41(A) does not specifically make reference to

permanent total disability in Section 52-1-25, when we “construe the provisions of the

[Workers’ Compensation] Act together to produce a harmonious whole[,]” DeWitt, 2009-

NMSC-032, ¶ 14, we understand Section 52-1-41(A) to refer only to a permanent total

disability under Section 52-1-25. In that manner, Section 52-1-41(A) fulfills the purpose of

the Workers’ Compensation Act of providing permanent financial security to an injured

worker who requires a permanent source of income for the worker’s lifetime.

{17} The WCJ determined, and Worker argues, that the Legislature intended temporary

total disability benefits to “be limited only by the spigot of medical judgment that a worker

is, or is no longer, at [maximum medical improvement] status.” Under this approach, we

would have to read the language providing “benefits for the remainder of his life” in Section
7

52-1-41(A) to mean that payment of total disability benefits is periodic and indefinite in

duration over the remainder of the worker’s lifetime and is dependent solely on whether

worker has reached maximum medical improvement and is entitled to either permanent total

disability or permanent temporary disability. Had the Legislature intended this approach,

the Legislature would have used clearer language and not provided benefits for the

“remainder of [a worker’s] life[,]” language that implies continuing benefits until death. See

Colonias Dev. Council v. Rhino Envtl. Servs., Inc., 2003-NMCA-141, ¶ 17, 134 N.M. 637,

81 P.3d 580 (stating that the Legislature would have provided a much “clearer indication”

if it had intended a statute to a more expansive meaning), rev’d on other grounds, 2005-

NMSC-024, 138 N.M. 133, 117 P.3d 939; Webster’s Third New International Dictionary

1919 (Unabridged 1993) (defining “remainder” as “ a remaining group, part, or trace” and

“remain” as “to continue unchanged in form, condition, status, or quantity”). A more natural

reading of Section 52-1-41(A) is that the Legislature specifically used the phrase providing

“benefits for the remainder of his life” for the specific purpose of providing lifetime benefits

exclusively for permanent total disability.

{18} Moreover, at least one issue before the Court is whether to apply the durational limit

contained in Section 52-1-47(A) to temporary total disability benefits. Section 52-1-47

expressly provides an exception for lifetime benefits awarded under Section 52-1-41(A).

By the plain language of Section 52-1-41(A), such lifetime benefits are benefits that a

worker receives for the remainder of the worker’s life. As we have stated, temporary total

disability benefits, by their temporary nature, do not continue for a worker’s lifetime. 

{19} Because the exception of Section 52-1-41(A) does not apply for temporary total

disability benefits, we must determine the applicable durational limits for temporary total

disability benefits. We turn first to Section 52-1-42. Section 52-1-42(A)(1), (2) provides

a 500- or 700-week duration limit, but it applies only to permanent partial disability, and

temporary total disability is neither “permanent” nor “partial.” See § 52-1-25.1. However,

Section 52-1-42(B) remains relevant. It states:

If an injured worker receives temporary total disability benefits prior

to an award of partial disability benefits, the maximum period for partial

disability benefits shall be reduced by the number of weeks the worker

actually receives temporary total disability benefits.

{20} Through Section 52-1-42(B), the Legislature has demonstrated its intent that

temporary total disability benefits are not excepted from the durational limits for permanent

partial benefits. Indeed, by its plain language, Section 52-1-42(B) requires temporary total

disability benefits to be included in the calculation of the durational limits of subsequent

permanent partial benefits. As we have discussed, the design of the Workers’ Compensation

Act is that an injured worker will receive temporary total disability benefits until the worker

has reached maximum medical improvement and receives permanent partial disability

benefits. Sections 52-1-25.1, -26.
8

{21} We acknowledge that there may be situations in which a worker receives permanent

partial disability benefits and subsequently aggravates the injury and qualifies for temporary

total disability only to not receive benefits because the worker exhausted the durational limit

for permanent partial disability. Although the Workers’ Compensation Act is intended to

protect injured workers and provide financial security, Madrid, 1996-NMSC-064, ¶ 8, this

result is a legislative decision striking a balance between the interests of the employer and

the worker. See NMSA 1978, § 52-5-1 (1990) (“It is the intent of the [L]egislature [that the

Workers’ Compensation Act] be interpreted to assure the quick and efficient delivery of

indemnity and medical benefits to injured and disabled workers at a reasonable cost to the

employers . . . based on a mutual renunciation of common law rights.”).

{22} We next turn to Section 52-1-47(A). Except for the lifetime benefits provision set

forth in Section 52-1-41(A), Section 52-1-47(A) provides a 700-week limit for

“compensation benefits for any combination of disabilities.” (Emphasis added.) The plain

language of Section 52-1-47(A) evinces a legislative intent to provide an absolute limit of

700 weeks for “any” compensation benefits awarded under the Worker’s Compensation Act,

except for lifetime benefits set forth in Section 52-1-41(A). We have determined that

Section 52-1-41(A) does not apply to temporary total disability. Thus, because temporary

total disability does not fall within the Section 52-1-41(A) lifetime benefits exception, the

700-week durational limit of Section 52-1-47(A) applies to temporary total disability

benefits. Although Worker argues that Section 52-1-47(A) contemplates a combination of

compensation benefits that does not include temporary total disability benefits, Section 52-1-

47(A) limits to 700 weeks “compensation benefits for any combination of disabilities”

without any exception other than for lifetime benefits.

{23} In sum, the WCJ erred in holding that the temporary total disability benefits awarded

to Worker were subject to payment over an indefinite duration pursuant to Section 52-1-

41(A). The temporary total disability benefits are subject to the 700- week durational limit

in Section 52-1-47(A). We therefore reverse the WCJ on this issue.

CHANGED MAXIMUM MEDICAL IMPROVEMENT STATUS

{24} Vista Care next argues that the WCJ erred in concluding that Worker was no longer

at maximum medical improvement as of March 14, 2007, even though the WCJ had

previously determined that Worker was at maximum medical improvement prior to April 27,

2006. Particularly, Vista Care argues that Worker’s prior admission that she was at

maximum medical improvement when applying for lump sum payments precluded the WCJ

from determining that Worker was no longer at maximum medical improvement as of the

date that Dr. Cash recommended that Worker undergo the anterior-posterior lumbar fusion

of L3-4.

{25} The date of maximum medical improvement is defined as “the date after which

further recovery from or lasting improvement to an injury can no longer be reasonably

anticipated based upon reasonable medical probability as determined by a health care
9

provider.” Section 52-1-24.1. The Workers’ Compensation Act provides for the

modification of a compensation order. In relevant part, NMSA 1978, Section 52-5-9 (1989)

provides that 

 

A. Compensation orders are reviewable subject to the conditions

stated in this section upon application of any party in interest in accordance

with the procedures relating to hearings. The [WCJ], after a hearing, may

issue a compensation order to terminate, continue, reinstate, increase,

decrease or otherwise properly affect compensation benefits provided by the

Workers’ Compensation Act . . . .

B. A review may be obtained upon application of a party in

interest filed with the director at any time within two years after the date of

the last payment or the denial of benefits upon the following grounds:

(1) change in condition[.]

Further, Section 52-1-56 provides that 

The [WCJ] may, upon the application of the employer, worker or

other person bound by the compensation order, fix a time and place for

hearing upon the issue of claimant’s recovery. . . . If it appears upon such

hearing that the disability of the worker has become more aggravated or has

increased without the fault of the worker, the [WCJ] shall order an increase

in the amount of compensation allowable as the facts may warrant.

{26} Under these statutory provisions, the WCJ had the authority to modify the maximum

medical improvement determination upon a change of condition if Worker’s injury became

aggravated or worsened to an extent that Worker was no longer at maximum medical

improvement. No statutory provision precludes such a modification because Worker

previously admitted to being at maximum medical improvement and requested lump sum

payment of benefits. Cf. Benny v. Moberg Welding, 2007-NMCA-124, ¶¶ 6-12, 142 N.M.

501, 167 P.3d 949 (holding that Section 52-5-9 and Section 52-1-56 provide authority for

the WCJ to grant temporary total disability benefits even after the worker received a lump

sum settlement for permanent partial disability benefits).

{27} Based on the evidence presented at trial, the WCJ concluded that “Worker’s spinal

condition slowly deteriorated and aggravated after her April 27, 2006 [maximum medical

improvement] date.” Further, the WCJ concluded that “March 14, 2007 was the clear date

on which Worker’s condition had changed sufficiently to warrant a recommendation for

scheduling of the surgical procedure” and therefore, “Worker was no longer at [maximum

medical improvement] status for her work injuries on March 14, 2007.” Vista Care does not

challenge the sufficiency of the evidence to support these findings, and the findings are

therefore binding on appeal. Rendleman v. Heinley, 2007-NMCA-009, ¶ 10, 140 N.M. 912,
10

149 P.3d 1009 (“An unchallenged finding is binding on appeal.”). The WCJ had the

authority to modify the designation that Worker was at maximum medical improvement and

find that Worker was no longer at maximum medical improvement as of March 14, 2007.

{28} Vista Care cites Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, 132

N.M. 608, 52 P.3d 980, disproved in part by Benny, 2007-NMCA-124, for the proposition

that “the need for and receipt of additional medical treatment does not alter the prior date and

finding that worker has reached [maximum medical improvement].” However, Souter dealt

with an inapposite issue. In Souter, this Court held that lump sum payments exhausting a

worker’s awarded permanent partial disability benefits did not preclude the worker from

petitioning for a modification of benefits for a change in condition as long as the worker

sought the modification during the statutory durational period beginning when the permanent

partial disability benefits were first awarded. Id. ¶¶ 18-22. Souter did not address a change

of a worker’s maximum medical improvement status or a worker’s maximum medical

improvement date and is not applicable to this case. 

CREDIT FOR LUMP SUM ADVANCES

{29} Vista Care lastly argues that the WCJ erred in determining that Vista Care is not

entitled to a credit for its lump sum advances of future permanent partial disability benefits

applied to the awarded temporary total disability benefits. “New Mexico does not provide

a statutory section in the [Workers’] Compensation Act, which deals with the question of

overpayment of prejudgment compensation benefits.” Paternoster v. La Cuesta Cabinets,

Inc., 101 N.M. 773, 776, 689 P.2d 289, 292 (Ct. App. 1984) (citation omitted). Accordingly,

fundamental fairness, “which balances the compensation goals of the [Workers’

Compensation] Act against the principle of fundamental fairness toward the employer”

guides courts in determining whether and under what circumstances a credit for overpayment

will be permitted. Id. at 779, 689 P.2d at 295. We will not disturb a WCJ’s determination

concerning whether a credit applies absent an abuse of discretion. See id. (“[T]he [district]

court has discretion to make an award of credit which balances the compensation goals of

the [Workers’ Compensation] Act against the principle of fundamental fairness toward the

employer.”); West v. Home Care Res., 1999-NMCA-037, ¶ 13, 127 N.M. 78, 976 P.2d 1030

(Ct. App. 1999) (stating that review of the method for applying credit to a WCJ’s

determination is limited to whether the WCJ abused his or her discretion). “An abuse of

discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by

the facts and circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M.

618, 930 P.2d 153. “A [district] court abuses its discretion when it exercises its discretion

based on a misunderstanding of the law.” Chavez v. Lovelace Sandia Health Sys., Inc.,

2008-NMCA-104, ¶ 25, 144 N.M. 578, 189 P.3d 711.

{30} Vista Care paid $78,428.38 in lump sum advances for debt to Worker for future

permanent partial disability benefits, and, at the time the WCJ issued the compensation

order, Worker had been overpaid $12,038.90. The WCJ determined that, although Vista

Care was entitled to a credit for any weekly permanent partial disability or partial temporary
11

total disability payment made after March 14, 2007, Vista Care was not entitled to a credit

for the lump sum permanent partial disability advances as applied to the awarded temporary

total disability benefits because the advances were purely for permanent partial disability

benefits. The WCJ reached this conclusion that “credit issues are irrelevant to payment of

[temporary total disability] benefits because Worker may potentially receive such benefits

beyond [the] 500[-] or 700[-]week limits established under Section 52-1-42.”

{31} Apparently, the WCJ concluded that the credit issues were irrelevant to the payment

of temporary total disability benefits because “it is customary to apportion the credit for

lump-sum payments by shortening the number of weeks that compensation is paid; that is,

by applying the credit at the back-end of the weekly compensation award.” West, 1999-

NMCA-037, ¶ 13. Because credits are typically applied to the back-end of a compensation

award, the WCJ apparently concluded that a credit was not applicable in this case because

of the indefinite duration of the temporary total disability awarded. However, as we

concluded, Worker may not receive temporary total disability benefits beyond the 700-week

limit established in Section 52-1-47(A). On remand, the WCJ should consider how the 700-

week limitation period affects the application of any potential credit for lump sum advances

of permanent partial disability benefits. 

CONCLUSION

{32} We hold that (1) temporary total disability benefits are subject to the 700-week

durational limitation found in Section 52-1-47(A); (2) the WCJ did not err in concluding that

Worker was not at maximum medical improvement on March 14, 2007, despite a previous

finding of maximum medical improvement; and (3) on remand, the WCJ should consider

how the 700-week limitation period affects the application of any potential credit for lump

sum advances of permanent partial disability benefits. Accordingly, we reverse in part and

affirm in part, and we remand to the WCA for further proceedings consistent with this

opinion.

{33} IT IS SO ORDERED.

____________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________

LINDA M. VANZI, Judge

____________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for Fowler v. Vista Care, No. 31,438 
12

APPEAL AND ERROR

Remand

Standard of Review

STATUTES

Interpretation

Legislative Intent

Rules of Construction

WORKERS COMPENSATION

Lump Sum Payment

Modification or Termination of Benefits

Time Limitations