Valenzuela v. A.S. Horner, Inc. , 9 N.M. 524 ( 2016 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: JANUARY 13, 2016
4 NO. 33,524
5 MANUEL VALENZUELA,
6 Worker-Appellant,
7 v.
8 A.S. HORNER, INC. and MOUNTAIN
9 STATES MUTUAL CASUALTY COMPANY,
10 Employer/Insurer-Appellees.
11 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
12 Shanon S. Riley, Workers’ Compensation Judge
13 Eaton & Eaton Law, P.C.
14 Kathryn L. Eaton
15 Los Ranchos, NM
16 for Appellant
17 The Law Offices of Robert Bruce Collins
18 Robert Bruce Collins
19 Holly R. Harvey
20 Julie A. Koschtial
21 Audra Davie
22 Albuquerque, NM
23 for Appellees
1 OPINION
2 ZAMORA, Judge.
3 {1} Manuel Valenzuela (Worker) appeals a workers’ compensation judge’s (WCJ)
4 order rating his permanent impairment at zero percent. Worker argues that the WCJ
5 erred in relying solely on an inadmissible independent medical examination (IME)
6 report as the basis for determining that Worker reached maximum medical
7 improvement (MMI) with an impairment rating of zero percent. As a matter of first
8 impression, we must decide whether an IME report itself is admissible under any
9 exception to the hearsay rule. We conclude that it is not and agree with Worker that
10 admission of the IME report without supporting testimony was reversible error.
11 I. BACKGROUND
12 {2} Worker suffered compensable injuries to his spine and right foot in the course
13 and scope of his employment with A.S. Horner, Inc. on May 18, 2011. A.S. Horner
14 was insured by Mountain States Mutual Casualty Co., Inc. (both referred to as
15 Employer herein). Worker continued to work for Employer at a light duty restriction.
16 Employer paid for the cost of treatment provided by Worker’s authorized health care
17 providers (HCPs). In March 2012 Dr. Thomas Whalen, Worker’s treating physician
18 and authorized HCP, referred Worker to Dr. Richard Miller for a consultation on the
19 foot injury. Dr. Whalen also referred Worker to Dr. James Harrington for a
1 consultation on the spine injury. Employer did not immediately authorize the referral
2 to Dr. Miller, and denied the referral to Dr. Harrington.
3 {3} On April 13, 2012, Worker underwent a panel IME with Dr. Marjorie Eskay-
4 Auerbach and Dr. Roya Mirmiran. The IME panel concluded that Worker reached
5 MMI with respect to both his back and foot injuries on April 13, 2012.
6 {4} On May 23, 2012, Worker filed a complaint for workers’ compensation
7 benefits, disputing the findings of the IME report. Worker continued treatment with
8 his HCP, who wrote a letter in June 2012 disputing the findings of the IME report and
9 seeking authorization to refer Worker to Dr. Miller. On June 26, 2013, Worker saw
10 Dr. Miller who determined that Worker would not likely benefit from surgical
11 treatment, but that Worker would benefit from a “custom Plastazote insole” and
12 accommodative shoes. Worker’s employment was terminated on August 1, 2012, due
13 to a workforce reduction. Worker received temporary total disability (TTD) payments
14 beginning August 8, 2012.
15 {5} A formal hearing on Worker’s claim was held on October 22, 2013. The
16 deposition testimony of Dr. Whalen was admitted into evidence without objection.
17 Dr. Whalen testified that Worker had not reached MMI and that an impairment rating
18 could not be determined until MMI was reached. Employer offered the IME report
19 as evidence, and the report was admitted over Worker’s objection. The WCJ entered
2
1 a compensation order on January 10, 2014, finding that Worker had a continuing need
2 for medical care stemming from the work-related condition and that the custom insole
3 and accommodative shoes recommended by Dr. Miller were reasonable and necessary
4 medical care related to Worker’s accident. Based on the IME report, the WCJ found
5 that Worker reached MMI for his injuries on April 13, 2012 and that Worker had zero
6 percent permanent physical impairment. Worker filed a motion for reconsideration
7 and/or clarification of the compensation order regarding the WCJ’s ruling on
8 Worker’s MMI and permanent impairment rating. The WCJ did not reconsider the
9 MMI or impairment ruling. This appeal followed.
10 II. DISCUSSION
11 {6} Worker argues that Employer failed to authenticate or lay a sufficient
12 foundation for the admission of the IME report, and the report therefore, constitutes
13 inadmissible hearsay. Worker further argues that the WCJ erred in adopting the IME
14 report, disregarding substantial admissible evidence contradicting the IME report’s
15 conclusions with respect to Worker’s MMI and impairment rating.
16 A. Admissibility of Medical Evidence Under the Workers’ Compensation Act
17 {7} Once an employer has notice of a work-related accident, it is required under the
18 Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended
19 through 2015) (the Act), to “provide the worker in a timely manner reasonable and
3
1 necessary health care services from a health care provider.” Section 52-1-49(A). In
2 doing so, the employer is entitled to make the initial HCP selection or to permit
3 Worker to make the selection. See Section 52-1-49(B). If there is a disputed medical
4 issue, such as “the reasonableness or necessity of medical or surgical treatment, the
5 date upon which [MMI] was reached, [or] the correct impairment rating for the
6 worker, [and] the parties cannot agree upon the use of a specific independent medical
7 examiner, either party may petition a workers’ compensation judge for permission to
8 have the worker undergo an [IME].” Section 52-1-51(A). “Only a[n HCP] . . . or
9 [IME provider] may offer testimony at any workers’ compensation hearing
10 concerning the particular injury in question.” See Section 52-1-51(C). Employer
11 asserts that the IME report constitutes admissible medical testimony under Section
12 52-1-51(C). Worker concedes that if the report was not hearsay it could be considered
13 medical testimony for the purposes of admissibility under the statute.
14 B. The IME Report Constitutes Inadmissible Hearsay
15 {8} The parties do not dispute that an IME report constitutes hearsay. A hearsay
16 statement consists of an out-of-court statement offered to prove the truth of the matter
17 asserted. Rule 11-801(C) NMRA 2003. An out-of-court statement is inadmissible
18 unless it is specifically excluded as non-hearsay under Rule 11-801(D) or falls within
19 a recognized exception in the rules of evidence, see, e.g., Rule 11-803 NMRA 2003,
4
1 or is otherwise made admissible by rule or statute. Rule 11-802. This Court reviews
2 the WCJ’s determination of whether testimony is within exceptions to the hearsay
3 rule for an abuse of discretion. State v. Salgado, 1999-NMSC-008, ¶ 5, 126 N.M.
4 691, 974 P.2d 661.
5 {9} The Workers’ Compensation Administration (WCA) has adopted by regulation
6 the rules of evidence and rules of civil procedure for the district courts of New
7 Mexico, and the rules apply to and govern proceedings within the adjudication of
8 workers’ compensation claims unless the regulations otherwise state or necessarily
9 imply. See 11.4.4.13(K) NMAC (10/1/2015). The regulations limit the presentation
10 of medical testimony, barring the use of live testimony, unless ordered by the WCJ.
11 11.4.4.13(D)(1) NMAC (“Live medical testimony shall not be permitted, except by
12 an order of the judge.”). Instead, the WCA regulations provide that certain documents
13 may be admitted into evidence without additional foundational testimony. Thus, “[a]
14 form letter to [an] HCP, completed by an authorized HCP may be admitted into
15 evidence.” 11.4.4.13(D)(2) NMAC. In addition, “[d]eposition testimony of authorized
16 HCPs shall be admissible, in lieu of live testimony.” 11.4.4.13(E)(4) NMAC. The
17 regulations limit admissibility of documents to these two circumstances and do not
18 provide for admission of any other documentary evidence as an exception to the
19 hearsay rule. In contrast, the WCA regulations are silent with regard to the admission
5
1 of an IME provider’s written evaluation report. Thus, the rules of evidence govern the
2 admissibility of the IME report.
3 {10} We agree with Worker that under the rules of evidence the IME report is
4 inadmissible hearsay. See Rule 11-801(C) NMRA (providing that an out of court
5 statement that is offered in evidence to prove the truth of the matter asserted in the
6 statement constitutes hearsay); Rule 11-802 NMRA (stating that hearsay is
7 inadmissible in the absence of a specific exception). Employer offered the IME report
8 as evidence of the truth of the assertion that Worker had reached MMI with an
9 impairment rating of zero percent, and therefore was hearsay. Employer does not
10 argue that the IME report is admissible under any exception and we see no basis for
11 admitting the report without implicating Worker’s right to due process. See Camino
12 Real Mobile Home Park P’ship v. Wolfe, 1995-NMSC-013, ¶ 37, 119 N.M. 436, 891
13 P.2d 1190 (“Hearsay statements are generally considered to be unreliable because
14 they are not given under oath and cannot be tested by cross-examination to determine
15 the truthfulness of the declarant.”), overruled on other grounds by Sunnyland Farms,
16 Inc. v. Cent. N.M. Elec. Coop, 2013-NMSC-017, ¶¶ 14, 16, 301 P.3d 387; Ennen v.
17 Sw. Potash Co., 1959-NMSC-025, ¶¶ 16, 22, 65 N.M. 307, 336 P.2d 1062 (holding
18 that two doctors’ reports admitted to show a worker’s decreased impairment rating
19 constituted inadmissible hearsay, explaining that “[i]t would not require the citation
6
1 of authority to support the proposition that a witness may not give testimony in a
2 cause unless he is placed under oath and the other party is given an opportunity to
3 cross-examine him”); Waldroop v. Driver-Miller Plumbing & Heating Corp., 1956-
4 NMSC-081, ¶¶ 21-22, 61 N.M. 412, 301 P.2d 521 (affirming the exclusion of a
5 written medical report in a workers’ compensation hearing; stating that “[i]t requires
6 no citation of authority to show that the excluded testimony is clearly hearsay”); see
7 also State ex rel. Battershell v. City of Albuquerque, 1989-NMCA-045, ¶¶ 17-18, 108
8 N.M. 658, 777 P.2d 386 (recognizing that administrative proceedings adjudicating
9 substantial rights are bound by fundamental principles of justice and procedural due
10 process, which require that testifying witnesses be sworn and be subject to cross-
11 examination).
12 {11} We see no basis for creating an exception where none exists. We hold that an
13 IME report admitted as stand-alone evidence concerning a worker’s medical
14 condition constitutes hearsay subject to no exceptions in the rule, statutes or
15 regulations. Accordingly, the WCJ erred in admitting the IME in this case and relying
16 solely on it as a basis for determining that Worker reached maximum medical
17 improvement with a zero percent impairment rating.
18 {12} We recognize that a doctor’s unsworn written evaluation report does not fit the
19 traditional definition of testimony. See Black’s Law Dictionary 1704 (10th ed. 2014)
7
1 (defining “testimony” as “[e]vidence that a competent witness under oath or
2 affirmation gives at trial or in an affidavit or deposition”). We also note that New
3 Mexico case law does not clearly establish that documentary evidence, such as
4 medical records and doctor’s reports, constitutes medical testimony under Section 52-
5 1-51(C). In Lopez v. City of Albuquerque, 1994-NMCA-122, 118 N.M. 682, 884 P.2d
6 838, this Court stated that under Section 52-1-51(C) the rule is “that only authorized
7 health care providers may give evidence,” implying that the Section 52-1-51(C)
8 limitation applies to any medical evidence instead of just medical testimony. Lopez,
9 1994-NMCA-122, ¶ 12 (emphasis added). This statement of the rule was recently
10 cited with approval by our Supreme Court in Dewitt v. Rent-A-Center, Inc., 2009-
11 NMSC-032, ¶ 33, 146 N.M. 453, 212 P.3d 341. However, we also stated in Lopez that
12 medical records from a provider who was neither an HCP nor an IME provider were
13 inadmissible, since the provider “was not one of the only two types of [HCP]s which
14 may provide testimony at compensation hearings [under Section 52-1-51(C)].” Lopez,
15 1994-NMCA-122, ¶ 13 (emphasis added). In Jurado v. Levi Strauss & Co., 1995-
16 NMCA-129, 120 N.M. 801, 907 P.2d 205, we interpreted this statement in Lopez as
17 a presupposition that medical records constitute testimony under Section 52-1-51(C).
18 Jurado, 1995-NMCA-129, ¶ 23. Based on our reading of Lopez, we held a doctor’s
19 written evaluation report also constituted testimony, such that it was subject to the
8
1 statute’s limitation on the types of medical testimony admissible at the compensation
2 hearing. Jurado, 1995-NMCA-129, ¶ 24. Because the outcome in this case does not
3 turn on whether the IME report at issue is considered testimony or documentary
4 evidence, but rather on whether the report is inadmissible hearsay, we need not
5 address any inconsistency or ambiguity in these decisions.
6 C. Lack of Substantial Evidence To Support WCJ’s Compensation Order
7 {13} We review the findings of the WCJ “under a whole record standard of review.”
8 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926.
9 Whole record review involves a review of all the evidence bearing on the WCJ’s
10 decision in order to determine if there is substantial evidence to support the result. See
11 Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177. “We
12 view the evidence in the light most favorable to the decision[.]” Dewitt v. Rent-A-Ctr.,
13 Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “Substantial evidence on
14 the record as a whole is evidence demonstrating the reasonableness of an agency’s
15 decision,” and we will not “reweigh the evidence nor replace the fact[-]finder’s
16 conclusions with our own.” Id. (citation omitted). “Where the testimony is
17 conflicting, the issue on appeal is not whether there is evidence to support a contrary
18 result, but rather whether the evidence supports the findings of the trier of fact.” Tom
9
1 Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320
2 (internal quotation marks and citation omitted).
3 {14} Here, neither Worker nor Employer disputes that the only evidence supporting
4 the WCJ’s determination that Worker reached MMI, with an impairment rating of
5 zero percent, was the inadmissible IME report. Aside from the report, the only
6 evidence relevant to Worker’s MMI and impairment rating was the deposition
7 testimony of Dr. Whalen. See Smith v. Cutler Repaving, 1999-NMCA-030, ¶ 10, 126
8 N.M. 725, 974 P.2d 1182 (“Key to determining MMI is expert medical testimony
9 regarding whether the injured worker is more likely than not to recover further.”
10 (internal quotation marks and citation omitted)). According to Dr. Whalen, Worker
11 had not yet reached MMI, so the level of Worker’s impairment could not be assessed.
12 After a review of all the admissible evidence, there is no evidence to support the
13 WCJ’s decision. We conclude that there is no substantial evidence in the record to
14 support the WCJ’s conclusions concerning Worker’s MMI and impairment rating.
15 III. CONCLUSION
16 {15} Based on the foregoing reasons, we reverse the WCJ’s compensation order.
17 {16} IT IS SO ORDERED.
18
19
20 M. MONICA ZAMORA, Judge
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1 WE CONCUR:
2
3 JAMES J. WECHSLER, Judge
4
5 LINDA M. VANZI, Judge
11