Varela v. Arizona Public Service

The opinion filed on November 14, 1989 is withdrawn on the courts own motion and this opinion is filled in its place. Claimant Eloy Varela (worker) appeals from the hearing officers order awarding benefits to worker of 15% permanent partial disability. Since the injury occurred in June 1986, this case is governed by the transient provisions of the workmens Compensation Act, NMSA 1973, Sections 52-1-1 to -68 (Orig. Pamp. & Cum. Supp. 1986) (the Interim Act). The hearing officers award was based on the provision of Section 52-1-25. Worker contends, however, that he was entitled to an award of total disability benefits under Section 52-1-24(A) instead. In Barela v. Midcon of New Mexico, Inc., Ct. App. No. 10,828 (Filed October 19, 1989), this court concludes that an award of benefits for partial disability under Section 52-1-25 must be considered in determining whether a worker is wholly unable to earn comparable wages and thus is totally disabled under Section 52-1-24. This appeal presents us with yet another aspect of the relationship between the two separate definitions of permanent total disability and permanent partial disability. Specifically, did a finding by the hearing officer of permanent partial disability under Section 52-1-25 preclude a separate finding of permanent total disability under Section 52-1-24A.