Gallegos v. Owen ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LEROY GALLEGOS,
3 Worker-Appellee,
4 v. NO. 32,751
5 OWENS & MINOR, INC.,
6 and INDEMNITY INSURANCE
7 COMPANY OF NORTH AMERICA,
8 Employer/Insurer-Appellants.
9 APPEAL FROM THE NEW MEXICO WORKERS’ COMPENSATION
10 ADMINISTRATION
11 David L. Skinner, Workers’ Compensation Judge
12 Mark Jarner
13 Los Lunas, NM
14 for Appellee
15 Paul L. Civerolo, L.L.P.
16 Paul L. Civerolo
17 Albuquerque
18 for Appellants
19 MEMORANDUM OPINION
1 GARCIA, Judge.
2 {1} Appellants Employer Owens & Minor, Inc. and Insurer Indemnity Insurance
3 Company of North America (Employer) appeal from the Workers’ Compensation
4 Judge’s ruling that Appellee Leroy Gallegos (Worker) is entitled to payment of 86%
5 permanent partial disability (PPD) benefits, which includes eight modification points
6 for his physical capacity, one modification point for his training, and three
7 modification points for his skills. [RP 172, 174] In our notice of proposed summary
8 disposition, we proposed to affirm. Employer has filed a memorandum in opposition
9 and Worker has filed a memorandum in support of the proposed disposition, both of
10 which this Court has duly considered. We do not find Employer’s arguments
11 persuasive, and therefore, we affirm.
12 Motion to Amend
13 {2} In the docketing statement, Employer asked this Court to determine whether the
14 WCJ erred in calculating Worker’s physical capacity, training, and skills modification
15 points. [DS 14-15] In the context of the procedural posture, the docketing statement
16 also mentioned issues that were raised before the WCJ, including the date of
17 maximum medical improvement (MMI) and whether Worker was entitled to modifier
18 enhancements for PPD benefits because Worker had submitted a letter of resignation,
19 dated November 17, 2010, to Employer indicating that his last day of employment
2
1 with Employer would be January 7, 2011. [DS 2-3; RP 107-11, 134-43] Employer did
2 not present these issues as issues on appeal; therefore, this Court did not address the
3 MMI issue in the proposed calendar notice, and we only briefly addressed the
4 resignation issue because it is relevant to Worker’s award of modifiers. See In re
5 Adoption of Doe, 1984-NMSC-024,¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that to
6 present an issue on appeal for review, a party must submit argument and authority).
7 [DS 14-15; see also DS 3]
8 {3} Our calendar notice proposed to affirm Worker’s award of modifiers. [CN 12]
9 Worker filed a memorandum in support, which addresses the MMI and resignation
10 letter issues, in addition to the award of modifier benefits. [MIS 3-13] Subsequently,
11 Employer filed a memorandum in opposition, which states that Employer is appealing:
12 (1) the date of MMI; (2) whether Worker was entitled to modifier enhancements for
13 PPD benefits because Worker had submitted a letter of resignation before he was
14 injured; and (3) the specific calculations of modifier enhancements for PPD benefits
15 if Worker was entitled to enhancements. [MIO 2-3]
16 {4} We construe Employer’s arguments that the WCJ erred in determining the date
17 of MMI and the effect of Worker’s resignation letter as new issues because Employer
18 did not list them as issues in his docketing statement or provide any authorities that
19 might have indicated they were issues Employer sought to raise. Cf. State v. Fuentes,
3
1 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (explaining that this Court does
2 not review unclear or undeveloped arguments). Nevertheless, Employer did not move
3 to amend the docketing statement to add these issues. See Rule 12-208(F) NMRA
4 (permitting the amendment of the docketing statement based on good cause shown);
5 State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (setting out
6 requirements for a successful motion to amend the docketing statement).
7 {5} We need not address the issues. Nevertheless, if we were to construe the
8 memorandum in opposition as a motion to amend, we would deny the motion because
9 the issues are not viable. The essential requirements to show good cause for our
10 allowance of an amendment to an appellant’s docketing statement are: (1) that the
11 motion be timely, (2) that the new issue sought to be raised was either (a) properly
12 preserved below or (b) allowed to be raised for the first time on appeal, and (3) that
13 the issues raised are viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M.
14 119, 782 P.2d 91, overruled on other grounds by State v. Salgado, 1991-NMCA-044,
15 ¶ 2, 112 N.M. 537, 817 P.2d 730. Employer has failed to demonstrate that it meets the
16 requirements for granting a motion to amend, including the requirement that the issue
17 must be viable. See id. (“By viable, we meant to describe an argument that was
18 colorable, or arguable, and to distinguish arguments that are devoid of any merit.”).
4
1 {6} We review workers’ compensation cases under a whole record standard of
2 review. Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d
3 926. In conducting our review, we defer to the expertise of the administrative judge
4 and “[w]e will not . . . substitute our judgment for that of the agency; although the
5 evidence may support inconsistent findings, we will not disturb the agency’s finding
6 if supported by substantial evidence on the record as a whole.” Herman v. Miners’
7 Hosp., 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734.
8 {7} In this case, Worker had a nerve ablation procedure—a facet radio-frequency
9 neurotomy at the L3, L4, and L5 levels on the right side of Worker’s lumbar
10 spine—on April 20, 2011. [RP 135, 138, 167] Dr. Zuniga performed the procedure,
11 discharged Worker on the same day, and instructed Worker to return to Dr. Zuniga’s
12 pain clinic in three months or earlier, if necessary. [RP 138, 167] Worker testified that
13 he returned to the pain clinic approximately three months later and in three-month
14 intervals thereafter. [RP 139, 168] Dr. Zuniga continued to prescribe Hydrocodone
15 and Gabapentin to Worker to relieve his pain. [RP 168]
16 {8} On November 10, 2011, Dr. Garcia and Dr. Patterson met with Worker for an
17 independent medical evaluation (IME). [RP 110-11, 135, 167] They determined that
18 Worker had reached MMI as of that date. [RP 111, 135, 137, 167, 168] According to
19 Employer, Dr. Garcia testified at her deposition that she did not give Worker an earlier
5
1 MMI date because no other health care provider had documented that Worker was
2 pain free until the IME. [RP 137, 140]
3 {9} Employer asserts that the medical records and undisputed testimony established
4 that Worker experienced immediate and significant improvement after his nerve
5 ablation procedure on April 20, 2011; therefore, “Worker’s date of MMI should have
6 been approximately the date of the ablation procedure or shortly thereafter, well
7 before the IME.” [MIO 4] Worker, on the other hand, asserts that the only health care
8 providers that testified regarding the date of MMI were Dr. Garcia and Dr. Patterson
9 in their IME report, and these health care providers determined the date of the MMI
10 was November 10, 2011. [MIS 3-4]
11 {10} Pursuant to NMSA 1978, Section 52-1-24.1 (1990), a health care provider must
12 determine the date of MMI. See Smith v. Cutler Repaving, 1999-NMCA-030, ¶ 10,
13 126 N.M. 725, 974 P.2d 1182 (“Key to determining MMI is ‘expert medical
14 testimony’ regarding whether the injured worker ‘is more likely than not’ to recover
15 further.”). Both Dr. Garcia and Dr. Patterson agreed that Worker reached MMI on
16 November 10, 2011, and Employer does not assert that another health provider offered
17 a different opinion. Even if that were the case, the WCJ is “responsible for resolving
18 any conflicts in medical testimony as to the date of MMI.” Madrid v. St. Joseph
19 Hosp., 1996-NMSC-064, ¶ 39, 122 N.M. 524, 928 P.2d 250; see also Easterling v.
6
1 Woodward Lumber Co., 1991-NMCA-036, ¶ 19, 112 N.M. 32, 810 P.2d 1252 (“In
2 making a whole record review, it is not a function of this court to reweigh the
3 evidence.”). Therefore, there was substantial evidence to support the WCJ’s decision
4 that Worker’s date of MMI was November 10, 2011. Because Employer’s arguments
5 are not viable, we deny Employer’s motion to amend with respect to the date of MMI.
6 {11} Similarly, Employer’s argument regarding Worker’s resignation letter lacks
7 merit. Even though Employer did not develop this argument in his docketing
8 statement, we addressed this issue in our calendar notice. [CN 6-7] We proposed to
9 disagree with Employer that Worker was not entitled to an award of modifiers because
10 he “had effectively resigned or retired and was voluntarily removing himself from the
11 work-force before the injury occurred.” [DS 3; CN 6-7]
12 {12} As we discussed in our proposed disposition, Worker’s accident occurred while
13 he was still working for Employer, and there was testimony that Worker intended to
14 find another job that required less physical exertion upon his resignation from
15 Employer. [CN 7] We proposed to conclude that Worker was entitled to modifier
16 enhancements for PPD benefits, despite the fact that he had submitted a letter of
17 resignation to Employer prior to the date he was injured. [CN 6-7, 12] In support of
18 this conclusion, we relied on Cordova v. KSL-Union, 2012-NMCA-083, ¶¶ 2-3, 25,
19 285 P.3d 686, in which this Court held that the worker was entitled to modifier-based
7
1 PPD benefits even though she had begun paperwork and preparations for retirement
2 before she was injured on the job, cert. denied, 2012-NMCERT-007, 295 P.3d 599.
3 {13} We are not persuaded by Employer’s argument that the facts in this case are
4 distinguishable from those in Cordova. [MIO 5] Likewise, we are not persuaded that
5 Worker’s testimony regarding finding another job was “self-serving speculation.” [CN
6 6] See Moya, 2008-NMSC-004, ¶ 6 (stating that it is for the WCJ as the fact finder to
7 assess credibility and weigh the evidence). Because we are not persuaded that Worker
8 voluntarily removed himself from the work-force, we conclude that he was entitled
9 to modifier enhancements for PPD benefits and that this issue is also not viable.
10 Physical Capacity Points
11 {14} In this Court’s calendar notice, we addressed Employer’s arguments that the
12 WCJ erred in determining that Worker’s usual and customary work required “heavy”
13 physical capacity instead of “medium” physical capacity, and the WCJ erred in
14 awarding Worker eight modification points based on the difference between his usual
15 and customary work physical capacity of “heavy” and his residual physical capacity
16 of “sedentary.” [DS 14-15] Applying a whole record standard of review, we proposed
17 to conclude that there was substantial evidence to support the WCJ’s decision that
18 Worker’s usual and customary work required “heavy” physical capacity. [CN 2-6]
8
1 Similarly, we proposed to conclude that Worker was entitled to eight modification
2 points for his physical capacity. [CN 6-7]
3 {15} “Our courts have repeatedly held that, in summary calendar cases, the burden
4 is on the party opposing the proposed disposition to clearly point out errors in fact or
5 law.” Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683.
6 Instead of pointing out errors of law or fact, Employer’s memorandum in opposition
7 reiterates his previous arguments. See State v. Mondragon, 1988-NMCA-027, ¶ 10,
8 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to a summary calendar
9 notice must come forward and specifically point out errors of law and fact, and the
10 repetition of earlier arguments does not fulfill this requirement), superseded by statute
11 on other grounds as stated in State v. Harris, 2013-NMCA-031, 297 P.3d 374.
12 {16} As a result, we affirm the WCJ’s determination that Worker’s usual and
13 customary work required “heavy” physical capacity, and we affirm Worker’s award
14 of eight modification points for his physical capacity.
15 Training Point (Specific Vocational Pursuit)
16 {17} In this Court’s calendar notice, we proposed to affirm the WCJ’s ruling that
17 Worker was entitled to one training point because Worker could not “competently
18 perform a specific vocational pursuit.” See NMSA 1978, § 52-1-26.3(D) (2001). [CN
19 7-9] We explained that Worker was not able to competently return to driving rental
9
1 cars, which is a “light” job, because his residual physical capacity was “sedentary”
2 and he was taking narcotic pain medication on a daily basis. [CN 8] See Medina v.
3 Berg Constr., Inc., 1996-NMCA-087, ¶¶ 22-23, 122 N.M. 350, 924 P.2d 1362
4 (interpreting “competently” to include “requisite physical, mental, natural or legal
5 qualifications” and determining that the worker could not competently return to work
6 as a truck driver, which was considered to be a “medium” job, because his residual
7 physical capacity was classified as “light” ).
8 {18} In its memorandum in opposition, Employer argues that Worker could have
9 returned to work as a rental car or shuttle driver because Worker’s physicians did not
10 restrict his ability to drive. Worker could legally drive and he had already been trained
11 for this type of work. [MIO 14-17] Employer minimizes Worker’s daily reliance on
12 pain medications, which made him drowsy, by stating that Worker “calls attention to
13 his habit of napping each afternoon, something he attributes to his medication.” [MIO
14 14-15; RP 113, 172]
15 {19} The fact that Worker must take narcotic medication to relieve his pain is not
16 insignificant, and the WCJ determined that this was sufficient to demonstrate that
17 Worker could not competently return to driving as an occupation. [RP 172] Under our
18 whole record standard of review, we do not disturb the WCJ’s assessment of the
19 evidence and of Worker’s credibility. See Easterling, 1991-NMCA-036, ¶ 19.
10
1 Accordingly, we affirm the WCJ’s determination that Worker is entitled to one
2 modification point for his training.
3 Skills Points (Specific Vocational Preparation)
4 {20} Employer continues to argue that there was not substantial evidence to support
5 the WCJ’s determination that the highest specific vocational preparation (SVP) level
6 demonstrated by Worker over the last ten years of his employment was a four,
7 entitling him to three skills points. [MIO 18-21; DS 15] See Section 52-1-26.3(C).
8 Employer asserts that, based on the evidence below, Worker’s highest SVP rating was
9 at least a five or six, which made him eligible for only two points. [MIO 19-21; DS
10 11-12] We addressed these issues in detail in our proposed disposition and proposed
11 to affirm. [CN 9-12]
12 {21} “A party opposing summary disposition is required to come forward and
13 specifically point out errors in fact and/or law.” State v. Ibarra, 1993-NMCA-040,
14 ¶ 11, 116 N.M. 486, 864 P.2d 302. Employer did not point out any errors in fact or
15 law in response to our calendar notice. To the extent that Employer is asking this
16 Court to reweigh the evidence presented below, we will not do so. See DeWitt v.
17 Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341
18 (“Substantial evidence on the record as a whole is evidence demonstrating the
11
1 reasonableness of [the WCJ’s] decision, and we neither reweigh the evidence nor
2 replace the [factfinder’s] conclusions with our own.” (citation omitted)).
3 {22} Therefore, we affirm Worker’s award of three modification points for his skills.
4 Conclusion
5 {23} For the reasons stated in this opinion and in our notice of proposed summary
6 disposition, we affirm.
7 {24} IT IS SO ORDERED.
8
9 TIMOTHY L. GARCIA, Judge
10 WE CONCUR:
11
12 MICHAEL D. BUSTAMANTE, Judge
13
14 J. MILES HANISEE, Judge
12