Sanchez v. Best Western Rio Grande ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 DOLORES SANCHEZ,
8 Worker-Appellant,
9 v. NO. 31,226
10 BEST WESTERN RIO GRANDE INN,
11 and HOSPITAL SERVICES CORP.,
12 Employer/Insurer-Appellees.
13 APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION
14 Gregory D. Griego, Workers’ Compensation Judge
15 Michael J. Doyle
16 Los Lunas, NM
17 for Appellant
18 Yenson, Lynn, Allen & Wosick, P.C.
19 Phyllis Lynn
20 Albuquerque, NM
21 for Appellees
22 MEMORANDUM OPINION
23 WECHSLER, Judge.
1 Appellant Dolores Sanchez (Worker) appeals from the workers’ compensation
2 judge’s (WCJ) compensation order that provides her some relief, but provides in
3 relevant part that not all of her injuries are work-related and that Worker’s residual
4 physical capacity was light rather than sedentary. [RP Vol. II/232] Our notice
5 proposed to affirm, and Worker filed a timely memorandum in opposition pursuant
6 to a granted motion for extension of time. We remain unpersuaded by Worker’s
7 arguments and therefore affirm.
8 In issue (A), Worker continues to argue that the WCJ erred in finding that her
9 T12-L1 back injury, which the WCJ viewed as correlating to Worker’s “low back
10 complaints” [RP 213], was not causally related to her August 7, 2006, work injury.
11 [DS 4; MIO 2-3; RP Vol. II/213-15, 232] As detailed in our notice, the WCJ
12 considered the conflicting opinions of Drs. Patton and Schultz to determine whether
13 Worker’s T12-L1 back injury was work-related. [RP Vol. II/213; DS 2] In addition,
14 the WCJ reviewed information in Worker’s medical records to assess the conflicting
15 opinions. [RP Vol. II/213] As discussed in our notice, the medical records supported
16 the opinion of Dr. Schultz that Worker’s T12-L1 injury was not causally related to her
17 work accident. [RP Vol. II/213-15; DS 1-3] While Worker maintains that Dr.
18 Schultz’s opinion was based on incomplete information [MIO 2-3], it was the WCJ’s
19 prerogative to assess credibility and weigh the evidence, and determine that Worker’s
2
1 T12-L1 back injury was not causally related to her work accident. See generally
2 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 9263 (stating that it is for the WCJ as the fact finder to assess credibility and weigh the
4 evidence); DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212
5 P.3d 341 (“Substantial evidence on the record as a whole is evidence demonstrating
6 the reasonableness of [the WCJ's] decision, and we neither re-weigh the evidence nor
7 replace the fact finder’s conclusions with our own.” (citation omitted)).
8 In issue (B), Worker continues to argue that the WCJ erred in ruling that her
9 residual physical capacity was light, rather than finding her capable only of sedentary
10 activity. [DS 6; MIO 3; RP Vol. II/216, 232] As provided in our notice, as support for
11 the WCJ’s ruling, the July 23, 2009, functional capacity evaluation identified that
12 Worker demonstrated lifting tolerance in the light level. [RP Vol. II/216] We
13 recognize Worker’s reliance on her treating physician’s view that she was capable
14 only of sedentary duty [DS 3; MIO 3], as well as Worker’s position that the functional
15 capacity evaluation did not consider all of the relevant medical records. [MIO 3]
16 However, it was the WCJ’s prerogative to rely on the functional capacity evaluation.
17 See Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113
18 P.3d 320 (explaining that “[w]here the testimony is conflicting, the issue on appeal is
19 not whether there is evidence to support a contrary result, but rather whether the
3
1 evidence supports the findings of the trier of fact” (internal quotation marks and
2 citation omitted)).
3 In issue (C), Worker continues to argue that the WCJ erred in ruling that
4 Appellee (Employer) is not responsible for payment of Dr. Patton’s second
5 independent medical examination (IME). [DS 6; MIO 4; RP Vol. II/217, 231]
6 Worker maintains that Employer should have been required to pay for the IME
7 because an authorized healthcare provider referred her to Dr. Patton. [DS 6; MIO 4]
8 As we explained in our notice, however, the determinative inquiry for whether the
9 Employer should have been required to pay for the IME, however, is not whether an
10 authorized healthcare provider referred Worker to Dr. Patton for the second IME, but
11 instead whether such IME was agreed to or otherwise authorized by the WCJ. See
12 NMSA 1978, § 52-1-51(A) (2005) (“In the event of a dispute between the parties . .
13 . if the parties cannot agree upon the use of a specific independent medical examiner,
14 either party may petition a workers' compensation judge for permission to have the
15 worker undergo an independent medical examination.”) (Emphasis added.) Because
16 the second IME was not agreed to by the parties, nor authorized by the Workers’
17 Compensation Administration [RP Vol. II/217], we affirm the WCJ’s ruling that
18 Employer did not have to pay for the second IME.
19 Lastly, we note that Worker’s memorandum in opposition does not further
4
1 contest the WCJ’s determination that her date of medical maximum improvement
2 (MMI) was August 4, 2009, rather than December 12, 2009. [DS 6; RP Vol. II/215,
3 232] For the reasons provided in our notice, we affirm this determination.
4 Based on the foregoing discussion, as well as the reasoning set forth in our
5 previous notice, we affirm.
6 IT IS SO ORDERED.
7 _______________________________
8 JAMES J. WECHSLER, Judge
9 WE CONCUR:
10 _____________________________
11 LINDA M. VANZI, Judge
12 _____________________________
13 J. MILES HANISEE, Judge
5