 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 JULIO RUBIO,

 8          Worker-Appellant,

 9 v.                                                                           NO. 30,649

10 DEPARTMENT OF PUBLIC SAFETY and
11 NEW MEXICO RISK MANAGEMENT
12 DIVISION,

13          Employer/Insurer-Appellees.


14 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
15 Gregory D. Griego, Workers’ Compensation Judge


16 Chavez Law Firm
17 Gonzalo Chavez
18 Roswell, NM

19 for Appellant

20 David L. Skinner, PC
21 David L. Skinner
22 Albuquerque, NM

23 for Appellees
 1                             MEMORANDUM OPINION

 2 KENNEDY, Judge.

 3        Julio Rubio (Worker) appeals from the compensation order that provides

 4 benefits to Worker, but also provides that Employer is entitled to a credit for benefits

 5 previously paid. [RP 110] Our second notice proposed to affirm, and Worker filed

 6 a timely memorandum in opposition pursuant to a granted motion for extension of

 7 time. We agree with the Workers’ Compensation Judge’s (WCJ) credit for benefits

 8 paid and, therefore, affirm.

 9 ISSUES A & B

10        Worker continues to argue that the WCJ improperly determined the amount of

11 credit to which Employer is entitled for its previous payments for loss of use benefits.

12 [DS 4; MIO 4]

13        As set forth in our second notice, the WCJ ruled that Worker is entitled to

14 benefits for a fifty-percent loss of use of the left foot for 115 weeks at a compensation

15 rate of $318.81 per week, [RP 115] for a total amount of $36,663.15. See NMSA

16 1978, § 52-1-43 (2003). From this total amount, however, the WCJ ruled that

17 Employer is entitled to a credit for loss of use benefits [RP 67, 68, 104] previously

18 paid [RP 115] in the amount of $10,840. [RP 105] Thus, apart from the $10,840

19 already paid by Employer, the WCJ determined that Worker is entitled to an



                                               2
 1 additional $25,823.15, along with interest at the judgment rate, to be paid at a weekly

 2 rate of $318.81 beginning on August 10, 2009. [RP 115]

 3        It is well established that when there are successive injuries to the same member

 4 or function, benefits for the subsequent injury may not duplicate benefits paid for the

 5 prior injury. See generally Gurule v. Albuquerque-Bernalillo Cnty. Econ. Opportunity

 6 Bd., 84 N.M. 196, 500 P.2d 1319 (Ct. App. 1972); Smith v. Trailways Bus Sys., 96

 7 N.M. 79, 628 P.2d 324 (Ct. App. 1981). Worker recognizes that Employer is entitled

 8 to a credit for benefits previously paid. [DS 6; MIO 4] Worker continues to argue,

 9 however, that the WCJ gave Employer too much credit for its previous payments for

10 loss of use. [MIO 4]

11        Worker’s argument focuses on the thirty-two week period of time beginning

12 when his injury worsened, and he became disabled on January 19, 2009, and ending

13 on September 18, 2009, when his 115 weeks of benefits for the first injury would have

14 expired. [RP 115] Worker seems to suggest that Employer should have only received

15 a credit for the weekly benefits Employer would have been liable for during that

16 thirty-two week period at the original thirty-four percent loss of use impairment

17 rating. Worker’s argument ignores two things. First, Employer paid Worker a lump

18 sum of $10,840, rather than a weekly benefit as Worker’s argument presumes.

19 Second, Worker is only entitled to a total of 115 weeks of benefits for the injury to his



                                               3
 1 foot that encompasses both the initial injury and its later worsening. See § 52-1-43

 2 (limiting loss of use disability benefits for an injury to a foot to 115 weeks). In light

 3 of that 115-week cap on benefits, the WCJ chose to simply restart the 115-week

 4 benefit period from the date that Worker reached maximum medical improvement for

 5 a second time and award Worker benefits for that entire period of time based on the

 6 fifty percent loss of use impairment rating. But then the WCJ credited Employer for

 7 the entire lump sum payment that was paid prior to the restarting of the 115-week

 8 benefit period. By doing so, we conclude that the WCJ applied an appropriate method

 9 for avoiding a duplication of benefits. See Tom Growney Equip. Co. v. Jouett,

10 2005-NMSC-015, ¶¶ 42-43, 137 N.M. 497, 113 P.3d 320 (recognizing a need for a

11 reduction of benefits if the compensation would otherwise duplicate the benefits the

12 employer paid on account of the prior injury); see also NMSA 1978, § 52-1-47(D)

13 (1990) (providing for the reduction of loss of use compensation benefits to avoid

14 duplication of benefits already paid).

15 CONCLUSION

16        Based on the foregoing discussion, we hold that the WCJ properly gave

17 Employer a credit for benefits previously paid. Thus, apart from the $10,840 already

18 paid by Employer, Worker is entitled to an additional $25,823.15, along with interest




                                               4
1 at the judgment rate, to be paid at a weekly rate of $318.81 beginning on August 9,

2 2009. We therefore affirm the compensation order.

3       IT IS SO ORDERED.



4                                              _______________________________
5                                              RODERICK T. KENNEDY, Judge


6 WE CONCUR:



7 _______________________
8 CYNTHIA A. FRY, Judge



 9 _______________________
10 LINDA M. VANZI, Judge




                                           5
