Yocom v. BJ Services ( 2011 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 THOMAS M. YOCOM,
8 Worker-Appellee,
9 v. NO. 30,971
10 B J SERVICES CO., and
11 CRAWFORD & CO.,
12 Employer/Insurer-Appellants.
13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
14 Gregory D. Griego, Workers’ Compensation Judge
15 Dorato & Weems, LLC
16 Derek L. Weems
17 Albuquerque, NM
18 for Appellee
19 Hale & Dixon PC
20 Timothy S. Hale
21 Albuquerque, NM
22 for Appellants
23 MEMORANDUM OPINION
24 VIGIL, Judge.
1 Employer and Insurer (Appellants) appeal the workers’ compensation judge’s
2 (WCJ) order awarding compensation to Worker for his injuries and a 25% penalty for
3 Appellants’ bad faith conduct. In this Court’s notice of proposed summary
4 disposition, we proposed to affirm. Appellants have filed a memorandum in
5 opposition, which we have duly considered. As we are not persuaded by Appellants’
6 arguments, we affirm.
7 In this Court’s notice of proposed summary disposition, we proposed to
8 conclude that (1) Appellants had not preserved any argument that they were entitled
9 to discovery on the issue of their own bad faith conduct, and they failed to explain to
10 this Court why they would need discovery regarding their own conduct in any case,
11 and (2) applying the whole record standard of review, there was evidence in the record
12 that a reasonable mind could accept as adequate to support the conclusion that
13 Appellants engaged in “intentional conduct in the handling of a claim . . . that amounts
14 to . . . willful or reckless disregard of the rights of [Worker].” See 11.4.1.7(C) NMAC
15 (1/24/1991) (recompiled 11/30/2001).
16 In Appellants’ memorandum in opposition, they fail to respond to this Court’s
17 proposed summary disposition of the discovery issue. Accordingly, they have not met
18 their burden of demonstrating reversible error on this basis. See State v. Johnson, 107
19 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that when a case is decided
2
1 on the summary calendar, an issue is deemed abandoned where a party fails to respond
2 to the proposed disposition of the issue).
3 With respect to the merits of the WCJ’s decision, Appellants argue that 11.4.3.6
4 NMAC (6/1/1996 (amended 11/30/2004) and 11.4.3.12 NMAC (5/26/1987) (amended
5 11/30/2004), which require cooperation and information sharing among the parties to
6 a workers’ compensation claim, indicate that the communication between Insurer and
7 Worker’s doctor was proper. [MIO 2-3] We disagree. The regulations discuss
8 cooperation and information sharing generally, and do not expressly address
9 communications between an insurer and a physician. NMSA 1978, Section
10 52-10-1(A) (1990), does address such communications, and as we explained in our
11 notice, Section 52-10-1 only permits an insurer to ask a worker’s physician to release
12 certain preexisting records. See Church’s Fried Chicken No. 1040 v. Hanson, 114
13 N.M. 730, 733-34, 845 P.2d 824, 827-28 (Ct. App. 1992). It does not permit the
14 insurer to engage in other discussions with the physician without the worker’s
15 consent. Id.16 Appellants assert that Church’s Fried Chicken is distinguishable because here
17 Worker “had not even filed an accident/incident report, and had not even told his
18 employer that he suffered a work related injury.” [DS 4; MIO 5] However, in our
19 notice of proposed summary disposition, we stated that it appeared that there was
20 evidence from which the WCJ could reasonably conclude that Worker had informed
3
1 Employer that he suffered a work-related injury. [RP 468] Worker has not responded
2 to our proposed conclusion. We therefore conclude that the evidence was sufficient,
3 and that Church’s Fried Chicken is not distinguishable on this basis. See Hennessy
4 v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have
5 repeatedly held that, in summary calendar cases, the burden is on the party opposing
6 the proposed disposition to clearly point out errors in fact or law.”).
7 Appellants also argue that Church’s Fried Chicken is distinguishable because
8 there the communications that were prohibited by the district court’s order were oral,
9 and here, the Insurer wrote a letter asking for the doctor’s opinions. [MIO 5] We are
10 not persuaded. First, we note that the original ex parte communication between the
11 insurer and the physician in Church’s Fried Chicken was a letter, and that the district
12 court’s order prohibited all further ex parte communications and noted that the worker
13 did not object to the insurer interviewing his doctor in person or by phone so long as
14 his attorney was present. See 114 N.M. at 732, 845 P.2d at 826. Therefore, it appears
15 that Church’s Fried Chicken applies to both written and oral communications. To the
16 degree there is any ambiguity in the opinion, however, the distinction between oral
17 and written communications is a distinction without a difference. In Church’s Fried
18 Chicken, we stated that Section 52-10-1 only permits an insurer to ask a worker’s
19 physician to release certain preexisting records, and that it does not permit the insurer
20 to engage in other discussions with the physician without the worker’s consent. 114
4
1 N.M. at 733-34, 845 P.2d at 827-28. Appellants have not explained why the rationale
2 of Church’s Fried Chicken would permit a party to ask questions in writing that it
3 would not be permitted to ask in person or over the telephone.
4 Appellants also ask this Court to reconsider Church’s Fried Chicken and to
5 adopt the dissent in that case. [MIO 2, 7-9] Appellants argue that the decision is
6 twenty years old, that the dissent is more persuasive than the majority opinion, and
7 that a worker’s privacy concerns should give way to the expedient handling of
8 workers’ compensation claims. We do not view these as compelling reasons to
9 overrule Church’s Fried Chicken, and we therefore decline to do so. See State ex rel.
10 Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 24, 135 N.M. 375, 89 P.3d 4711 (“Based on the importance of stare decisis, we require a compelling reason to overrule
12 one of our prior cases.” (internal quotation marks and citation omitted)).
13 Finally, Appellants argue that the Insurer’s conduct should not constitute bad
14 faith, since sending the letter was necessary in order to comply with the requirement
15 that Appellants fairly process Worker’s claim. [MIO 6-7] We disagree. Appellants
16 were required to investigate and process Worker’s claim in accordance with the law,
17 which includes Section 52-10-1(A) as it has been interpreted by this Court.
18 Therefore, for the reasons stated in this opinion and in our notice of proposed
19 summary disposition, we affirm.
20 IT IS SO ORDERED.
5
1 _________________________
2 MICHAEL E. VIGIL, Judge
6
1 WE CONCUR:
2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge
4 _________________________________
5 CYNTHIA A. FRY, Judge
7