Blakely v. Lovelace Hospital ( 2019 )

This decision was not selected for publication in the New Mexico Appellate Reports. Please see
Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also
note that this electronic decision may contain computer-generated errors or other deviations from
the official paper version filed by the Supreme Court.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 KATHY BLAKELY,
3 Worker-Appellant,
4 v. No. A-1-CA-35889
5 LOVELACE HOSPITAL and
6 HARTFORD INSURANCE
7 COMPANY OF THE MIDWEST,
8 Employer/Insurer-Appellees.
9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 Terry S. Kramer, Workers’ Compensation Judge
11 Dunn Law Offices
12 Rod Dunn
13 Rio Rancho, NM
14 for Appellant
15 Camp Law, LLC
16 Minerva Camp
17 Albuquerque, NM
18 for Appellees
19 MEMORANDUM OPINION
1 HANISEE, Judge.
2 {1} Worker Kathy Blakely appeals from the September 1, 2016, Workers’
3 Compensation Judge’s (WCJ) compensation order awarding her temporary total
4 disability (TTD) benefits from April 17, 2015, to January 29, 2016, following an
5 accident she suffered at work. Worker contends that the WCJ’s order—specifically
6 its findings and conclusions regarding the date Worker reached maximum medical
7 improvement (MMI) for her work-related right hip injury and the overall
8 compensability of that injury—is not supported by substantial evidence.
9 Concluding that the whole record does not support the WCJ’s ruling, we reverse
10 and remand for further proceedings.
11 BACKGROUND
12 {2} On April 17, 2015, Worker, a registered nurse employed by Lovelace
13 Hospital (Employer), was injured in a work-related accident when a patient she
14 was assisting grabbed her arm and pulled her down, causing Worker to hit her right
15 hip and lower back on a toilet. Worker experienced immediate pain in her right hip
16 and back and was referred by Employer to Concentra Medical Center, where she
17 was seen by Dr. David Lyman. Worker received medical treatment and care from
18 various providers, including Dr. Lyman, Dr. Evan Knaus, and Dr. Arnold Kiburz,
19 in the months following the accident and was eventually taken off of work
2
1 completely by Dr. Lyman on June 30, 2015, based upon her complaints of
2 worsening pain.
3 {3} On January 25, 2016, Employer filed a complaint with the Workers’
4 Compensation Administration (WCA) seeking a determination of compensability
5 and benefits, a suspension or reduction of benefits, and a credit for overpayment.
6 Employer filed the complaint “in the interest [of] . . . see[ing] whether Worker’s
7 injuries have reached [maximum medical improvement (MMI)]” and indicated that
8 it was “contemplat[ing] whether a six month re[]evaluation[] with Dr. Lyman . . .
9 would be helpful to assess Worker’s achievement of MMI.” Employer alternatively
10 posited that an independent medical examination (IME) “may be helpful to allow
11 an objective provider . . . to give clinical opinions on treatment recommendations
12 and achievement of MMI.” Neither a reevaluation by Dr. Lyman nor an IME ever
13 occurred.
14 {4} At the trial held on August 15, 2016, the depositions of Drs. Lyman and
15 Knaus—the only treating physicians of Worker who were deposed—were admitted
16 into evidence. Also admitted were medical records from various physicians and a
17 form letter to health care provider completed by Dr. Kiburz.
18 {5} In its compensation order, the WCJ first found that Worker “suffered an on-
19 the-job accident on April 17, 2015” in which she “injured her low back and right
20 hip.” Regarding Worker’s right hip, the WCJ found that “Worker suffered a
3
1 pre[]existing right hip injury” and that she “did not suffer problems to her right hip
2 other than a temporary exacerbation” of that preexisting injury. The WCJ
3 additionally found that “Worker reached [MMI]” for the right-hip-exacerbation
4 injury “with no permanent impairment[,]” but provided no specific date of MMI
5 for that injury. The WCJ separately found that “Worker reached [MMI] for all
6 conditions no later than January 29, 2016.” The WCJ also found that “[t]he opinion
7 of Dr. Kiburz . . . is that Worker’s current right hip complaints are not causally
8 related to the . . . work accident[,]” an opinion that the WCJ “accepted.” From the
9 foregoing, the WCJ concluded that Worker “is not entitled to additional benefits
10 for her right hip.” Worker appealed.
11 DISCUSSION
12 {6} Neither party challenges the WCJ’s determination of benefits with respect to
13 Worker’s back-related injury. 1 Thus, the only issue we address in this appeal is
14 whether the record supports the WCJ’s findings and conclusions regarding the
15 compensability of Worker’s right hip injury.
16 {7} Worker argues that substantial evidence does not support the WCJ’s findings
17 that (1) Worker had a preexisting right hip injury, (2) the only injury to the right
18 hip that Worker suffered was a temporary exacerbation of her preexisting injury,
1
To the extent we discuss issues and evidence related to Worker’s back
injury, we do so only to provide context for our analysis of the compensability of
Worker’s right hip injury.
4
1 and (3) Worker had reached MMI for that injury. Worker, therefore, contends that
2 the WCJ’s conclusion that Worker is entitled to no additional benefits for her right
3 hip injury cannot be sustained. We agree with Worker that the WCJ’s ruling
4 regarding Worker’s right hip is, on the whole, unsupported, requiring reversal and
5 remand.
6 Standard of Review
7 {8} “We review workers’ compensation orders using the whole record standard
8 of review.” Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168
9 P.3d 177. “In applying whole record review, this Court reviews both favorable and
10 unfavorable evidence to determine whether there is evidence that a reasonable
11 mind could accept as adequate to support the conclusions reached by the fact[-
12 ]finder.” Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, ¶ 15, 120
13 N.M. 734, 906 P.2d 266. While “this Court is not empowered to choose between
14 two fairly conflicting views, even though the court would justifiably have made a
15 different choice had the matter been before it de novo,” Trujillo v. Los Alamos
16 Nat’l Lab., 2016-NMCA-041, ¶ 45, 368 P.3d 1259 (internal quotation marks and
17 citation omitted), cert. denied, 2016-NMCERT-___, (No. S-1-SC-35805, Apr. 7,
18 2016), an administrative agency’s findings “must . . . be set aside when the record
19 before the reviewing court precludes the agency’s decision from being justified by
20 a fair estimate of the worth of the testimony of witnesses[.]” Tallman v. ABF
5
1 (Arkansas Best Freight), 1988-NMCA-091, ¶ 16, 108 N.M. 124, 767 P.2d 363
2 (internal quotation marks and citation omitted). We will set aside a workers’
3 compensation judge’s findings of fact only if “they are shown to be clearly
4 erroneous or not supported by requisite evidence.” St. Clair v. Cty. of Grant, 1990-
5 NMCA-087, ¶ 30, 110 N.M. 543, 797 P.2d 993.
6 {9} “The reviewing court starts out with the perception that all evidence,
7 favorable and unfavorable, will be viewed in the light most favorable to the
8 agency’s decision.” Tallman, 1988-NMCA-091, ¶ 18. “This would, however, not
9 preclude the court from setting aside the agency decision when it cannot
10 conscientiously say that the evidence supporting the decision is substantial, when
11 viewed in the light that the whole record furnishes.” Id. “To determine whether a
12 finding of fact is amply supported by the whole record, we do not rely solely on
13 one part of the evidence if to do so would be unreasonable.” Herman v. Miners’
14 Hosp., 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734. “We must find
15 evidence that is credible in light of the whole record and that is sufficient for a
16 reasonable mind to accept as adequate to support the conclusion reached by the
17 agency.” Id. (internal quotation marks and citation omitted). “Substantial evidence
18 on the record as a whole is evidence demonstrating the reasonableness of an
19 agency’s decision.” Begay v. Consumer Direct Pers. Care, 2015-NMCA-025, ¶ 6,
20 344 P.3d 1083 (alteration, internal quotation marks, and citation omitted).
6
1 Whether the Evidence Supports the WCJ’s Finding That Worker’s Right Hip
2 Injury Was a “Temporary Exacerbation” of a Preexisting Injury
3 {10} The WCJ found that “Worker suffered a pre[]existing right hip injury[,]” a
4 finding that Worker challenges as unsupported by the evidence. As the record
5 reflects, Worker testified at trial that she suffered a labral tear of her right hip in
6 2005 that was repaired through arthroscopy surgery. Worker’s previous right hip
7 surgery is documented throughout the record, including in the treatment notes of
8 Dr. Lyman. In challenging the evidence supporting the finding of a preexisting
9 right hip injury, Worker points to what she describes as “the uncontradicted
10 evidence [showing] that [she] had no pain, problems, or limitations relative to her
11 right hip in the days, months, and years prior to the April 17, 2015 work-related
12 accident.” It is true that Worker testified that following the 2005 surgery, she
13 experienced no problems “with right hip pain at all” and that she was never placed
14 on work restrictions as a result of her prior hip injury. But simply because Worker
15 was not experiencing problems with, or pain in, her right hip and was under no
16 work restrictions following her successful surgery in 2005 does not render the
17 WCJ’s finding of a preexisting right hip injury unsubstantiated. The WCJ’s finding
18 that Worker had a preexisting injury to her right hip is supported by substantial
19 evidence. That finding, however, addresses but a threshold issue related to the
20 WCJ’s separate finding that Worker suffered only a temporary exacerbation of that
7
1 preexisting injury. Whether that finding is supported by the record is a separate
2 matter entirely, to which we next turn.
3 {11} While Dr. Knaus, who had treated Worker in 2012 for back-related
4 problems, described the injury to Worker’s back as an “exacerbation” of a
5 preexisting condition, none of Worker’s health care providers stated or were asked
6 whether Worker’s post-accident right hip complaints arose from a “temporary
7 exacerbation” of a preexisting condition. Rather, each diagnosed her with various
8 new injuries: Dr. Lyman, a “contusion of the right hip . . . indicative of a trauma”;
9 and Drs. Knaus and Kiburz, a right hip labral tear. Indeed, Dr. Knaus specifically
10 noted that his prior treatment of Worker involved only her back, and he described
11 Worker’s “right[-]side hip and groin complaints” in 2015 as “new[.]” And while
12 Dr. Kiburz additionally diagnosed Worker with right hip osteoarthritis—a
13 condition that he opined, via his form letter, was not caused by the April 2015
14 work accident, i.e., was preexisting—that diagnosis indicates little, if anything,
15 about whether Worker’s work-related injuries were limited solely to an
16 exacerbation of a preexisting right hip condition.
17 {12} While undoubtedly possible that some of Worker’s post-accident right hip
18 pain could be described as indicating an exacerbation of Worker’s prior right hip
19 injury, the WCJ’s order provides no explanation of the evidence that supports its
20 finding that Worker suffered only a “temporary exacerbation” injury. See Sanchez
8
1 v. Zanio’s Foods, Inc., 2005-NMCA-134, ¶ 70, 138 N.M. 555, 123 P.3d 788
2 (explaining that “WCJ clarity and expressed reasoning is essential to our effective
3 and meaningful review”). Moreover, on appeal, Employer points to no
4 jurisprudence that would permit such a conclusion to be reached based solely upon
5 the known existence of a prior injury or an existing arthritic condition. On the
6 whole record, we conclude that the WCJ’s finding that Worker suffered only a
7 “temporary exacerbation” of her right hip injury is unreasonable as it is supported
8 nowhere in the record. However, even assuming, arguendo, that Worker suffered
9 only an exacerbation injury, the WCJ’s order must nevertheless be reversed
10 because there is no evidence that Worker has reached MMI for that injury, as we
11 next explain.
12 Whether the Evidence Supports a Finding That Worker Had Reached MMI
13 for Her Right Hip
14 {13} As defined in the Workers’ Compensation Act, MMI “means the date after
15 which further recovery from or lasting improvement to an injury can no longer be
16 reasonably anticipated based upon reasonable medical probability as determined by
17 a health care provider[.]” NMSA 1978, § 52-1-24.1 (1990). The determination of
18 MMI is important because “[e]ligibility for the various temporary benefits
19 provided under the [Workers’ Compensation] Act ends at the date of MMI.”
20 Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 7, 122 N.M. 524, 928 P.2d 250.
21 TTD benefits, at issue in this case, are available to a worker only from the time the
9
1 inability to work arises until the worker is declared to have reached MMI. See
2 NMSA 1978, § 52-1-25.1(A) (2017). “Key to determining MMI is expert medical
3 testimony regarding whether the injured worker is more likely than not to recover
4 further.” Smith v. Cutler Repaving, 1999-NMCA-030, ¶ 10, 126 N.M. 725, 974
5 P.2d 1182 (internal quotation marks and citation omitted). There must be some
6 evidence that the worker “has reached a plateau of medical stability for the
7 foreseeable future.” Rael v. Wal-Mart Stores, Inc., 1994-NMCA-017, ¶ 14, 117
8 N.M. 237, 871 P.2d 1. Where an expert’s uncontradicted testimony, read as a
9 whole, suggests a probability of future improvement rather than the achievement of
10 a static, stable state, a finding that MMI has been reached is unsupported. Cf.
11 Smith, 1999-NMCA-030, ¶¶ 15-16 (explaining, in a case involving a secondary
12 mental impairment, that where an expert’s report and testimony, “[r]ead as a
13 whole, . . . indicate a probability of future psychological improvement, not a static
14 and stabilized emotional state[,]” and where other doctors opined that the worker
15 was “benefitting from outpatient therapy” and “needs considerable
16 psychotherapeutic work[,]” the workers’ compensation judge’s finding that the
17 worker had reached MMI was “not supported by substantial evidence” (alteration,
18 internal quotation marks, and citation omitted)).
19 {14} Here, the evidence bearing on MMI was in the form of (1) Dr. Lyman’s
20 deposition testimony, (2) Dr. Knaus’s deposition testimony, and (3) Dr. Kiburz’s
10
1 form letter. We consider each source separately to determine whether any supplied
2 the necessary evidence to support the WCJ’s finding that Worker had reached
3 MMI “for all conditions no later than January 29, 2016.”
4 {15} Dr. Lyman testified that as of June 30, 2015, the last date on which he
5 treated Worker, he had not placed Worker at MMI for any of the injuries—hip- or
6 back-related, or whether characterized as “exacerbation” or separate, new
7 injuries—for which he treated Worker following the work accident. In response to
8 questioning by Employer, he specifically explained, “[MMI] means that you have
9 reached as good as you’re going to get as a result of the injury.” Dr. Lyman’s
10 testimony and medical records evince that Worker’s condition not only did not
11 stabilize or plateau but in fact steadily worsened during the time he treated her.
12 One indicator of Worker’s worsening condition was that Dr. Lyman, who initially
13 released Worker to return to work with certain modifications and restrictions,
14 continued to increase those restrictions due to Worker’s “continued level of
15 disability and discomfort” and eventually took Worker off of work completely due
16 to her complaints of worsening pain. As of June 2015, Dr. Lyman “felt that
17 [Worker] needed more treatment[,]” specifically physical therapy and physiatry.
18 He explained that he does not “place someone at [MMI] until everything has been
19 tried” and, noting that his records lacked “evidence that everything has been
20 tried[,]” stated, “It was my opinion that she had not reached [MMI].” Dr. Lyman’s
11
1 testimony thus fails to supply evidence in support of the WCJ’s finding regarding
2 MMI.
3 {16} Dr. Knaus, for his part, first saw Worker in July 2015. At that time he
4 recommended that she “undergo[] further diagnostic evaluation of the right hip”
5 and referred her to Dr. Kiburz, a hip specialist, believing that Worker’s hip pain
6 could be “help[ed].” In August 2015 Dr. Knaus performed an inter-articular
7 injection on Worker’s right hip, believing that Worker would “see further recovery
8 from or lasting improvement to her right hip complaints if she underwent th[e]
9 injection.” When Worker did not receive lasting improvement benefit from the
10 injection, Dr. Knaus referred Worker back to Dr. Kiburz for additional
11 consultation. In December 2015, when Worker reported to Dr. Knaus that her
12 follow-up appointment with Dr. Kiburz had been “canceled by her adjuster,” Dr.
13 Knaus and Worker discussed the possibility of “obtaining a second opinion from
14 an orthopedic hip doctor” or “undergoing an [IME].” Dr. Knaus, indeed, referred
15 Worker to a different orthopedic specialist. When Dr. Knaus saw Worker on
16 January 29, 2016, he recommended “starting an aquatic therapy program to work
17 on ongoing strengthening and mobility.” He did so because he “was hopeful that it
18 would be beneficial for [Worker].” Dr. Knaus expressly stated that as of January
19 29, 2016, the last date on which he treated Worker, he had not placed Worker’s
12
1 right hip at MMI. So too, Dr. Knaus’s testimony fails to supply evidence to support
2 the WCJ’s finding on the issue of MMI.
3 {17} With respect to Dr. Kiburz, he treated Worker only once, on August 19,
4 2015. In his treatment notes, Dr. Kiburz explained that Worker “presents for
5 evaluation of right hip pain after a work[-]related injury. Her injury occurred on or
6 about 4/17/2015.” Under “Impressions,” Dr. Kiburz indicated that Worker was
7 suffering from two conditions: (1) “right Labral Tear Hip” and (2) “right
8 Osteoarthritis Localized Primary Hip/Thigh.” Dr. Kiburz recommended an intra-
9 articular injection, which was performed by Dr. Knaus, and that Worker follow up
10 with him in one month. Three months later and without seeing Worker again, Dr.
11 Kiburz filled out a form letter to health care provider. In response to the form’s
12 preprinted question, “What is your diagnosis of the condition(s) for which you
13 have treated the Worker?” Dr. Kiburz wrote “R Hip OA,” indicating right hip
14 osteoarthritis. As to that condition, Dr. Kiburz indicated that Worker had reached
15 MMI as of August 19, 2015, the date on which he saw Worker. Nowhere in the
16 statements made by Dr. Kiburz in the form letter does he so much as mention
17 Worker’s right hip labral tear. Thus, Dr. Kiburz’s opinion at most supports a
18 finding that Worker’s right hip osteoarthritis had reached MMI, and nothing more.
19 {18} Against the backdrop of this uncontradicted medical evidence, the WCJ’s
20 finding that Worker had reached MMI “for all conditions” no later than January
13
1 29, 2016, is unsupportable on this record. Notably absent from the WCJ’s order is
2 any discussion of the testimony and opinions of either Dr. Lyman or Dr. Knaus,
3 with the order instead focusing solely, and unreasonably, on the opinion contained
4 in Dr. Kiburz’s form letter to support its determination. But in the context of
5 determining whether Worker had reached MMI for the discrete injuries she
6 suffered as a result of the work accident, Dr. Kiburz’s form letter responses
7 provide little, if any, probative worth, particularly in light of the evidence supplied
8 by the whole record. See Trujillo, 2016-NMCA-041, ¶ 15 (“After reviewing all the
9 evidence, both favorable and unfavorable, we disregard that which has little or no
10 worth and then decide if there is substantial evidence in the whole record to
11 support the agency’s finding or decision.” (internal quotation marks and citation
12 omitted)). In all, we conclude that the WCJ’s ruling is not supported by substantial
13 evidence and must, therefore, be reversed.
14 Remand is Necessary
15 {19} This Court has not hesitated to remand a case when the WCJ’s order fails to
16 clearly and meaningfully address the ultimate issues presented. See Zanio’s Foods,
17 Inc., 2005-NMCA-134, ¶ 70 (“WCJ clarity and expressed reasoning is essential to
18 our effective and meaningful review.”); St. Clair, 1990-NMCA-087, ¶ 40 (“Where
19 the findings of fact are insufficient to permit meaningful appellate review, the
20 cause may be remanded in the interests of justice for the adoption of additional
14
1 findings.”). We do so in this case because on the record and briefing before us, we
2 cannot say that the WCJ’s findings and conclusions with respect to the
3 compensability of Worker’s right hip injury are reasonable.2 On remand, the WCJ
4 must render a determination regarding the compensability of Worker’s right hip
5 injury that is supported by substantial evidence, including express findings relating
6 to the date of MMI of Worker’s right hip injury and the degree of disability caused
7 by that injury. The WCJ may order additional discovery or an IME or may follow
8 such other procedures as may be necessary to reach a reasonable compensation
9 determination, one supported by substantial evidence.
10 {20} Our cases have previously cautioned parties and workers’ compensation
11 judges about the need to “take exceptional care to adequately cover the questions
12 raised” in cases involving multiple injuries and where preexisting injuries may be
13 at issue. Molinar, 2018-NMCA-011, ¶ 49 (internal quotation marks and citation
14 omitted); see Zanio’s Foods, Inc., 2005-NMCA-134, ¶¶ 54, 57. This case serves as
15 yet another example of how the failure to do so can unnecessarily prolong an
2
Because of the deficient nature of the original briefs filed in this appeal, this
Court ordered each of the parties to submit a supplemental brief addressing
specific issues the Court identified as needing clarification. Worker’s supplemental
brief sufficiently clarifies her appellate argument to at least facilitate our ability to
meaningfully review the compensation order herein. Employer’s briefs have failed
to provide this Court with either convincing counterarguments to the issues Worker
raises or any reasoned analysis supporting affirmance of the decision below.
15
1 otherwise uncomplicated proceeding and delay the final disposition of cases that
2 are intended to be resolved swiftly and efficiently.3
3 CONCLUSION
4 {21} For the foregoing reasons, we reverse the WCJ’s compensation order and
5 remand for the WCJ to make a reasonable and supportable determination regarding
6 the compensability of Worker’s right hip injury.
3
We reject Employer’s attempt to shift to this Court any responsibility for
the delay in resolving this appeal. Employer’s speculative statement that
“[e]lections, re-appointments[,] and staff turnover are likely the root cause of
delay” not only has no place in an appellate brief but also ignores the primary
source of delay: Employer’s own preoccupation with baseless allegations and
specious issues, and its concomitant failure to both develop a sufficient record
below and present and argue only relevant facts and dispositive issues on appeal.
We caution Employer and its counsel regarding the use of such disparaging
assertions in future briefing to this Court.
Contrary to Employer’s apparent belief, this Court has invested an inordinate
amount of time and resources attempting to decipher and unravel both the parties’
briefs and the WCJ’s order. As noted above, this Court ordered supplemental
briefing in order to provide both parties the opportunity to meaningfully aid the
Court’s review because of the obvious shortcomings of their initial briefs. Instead
of making the most of the opportunity to clarify its argument, defend the WCJ’s
order, and offer this Court a possible path to affirmance, Employer does little more
in its supplemental brief than recite myriad ancillary facts without providing any
explanation or analysis of how these facts apply to workers’ compensation law or
inform our analysis of the issues presented herein. We are under no obligation to
consider, more than we already have, Employer’s unclear, undeveloped,
unsupported contentions. See Elane Photography, LLC v. Willock, 2013-NMSC-
040, ¶ 70, 309 P.3d 53 (“We will not review unclear arguments, or guess at what a
party’s arguments might be.” (alteration, internal quotation marks, and citation
omitted); Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court
has no duty to review an argument that is not adequately developed.”); ITT Educ.
Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244,
959 P.2d 969 (explaining that this Court will not consider propositions that are
unsupported by citation to authority).
16
1 {22} IT IS SO ORDERED.
2 _______________________________
3 J. MILES HANISEE, Judge
WE CONCUR:
4 _________________________________
5 JULIE J. VARGAS, Judge
6 _________________________________
7 BRIANA H. ZAMORA, Judge
17