Leyba v. Thunderbird Supply Co.

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PETE LEYBA,
3 Worker-Appellee,
4 v. NO. 32,636
5 COLORADO CASUALTY
6 INSURANCE COMPANY,
7 Insurer,
8 THUNDERBIRD SUPPLY CO., INC., and
9 CONTINENTAL WESTERN INSURANCE
10 UNION STANDARD INSURANCE,
11 Employer/Insurers-Appellants.
12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
13 Terry S. Kramer, Workers’ Compensation Judge
14 Kathryn L. Eaton
15 Albuquerque, NM
16 for Appellee
17 Doughty & West, P.A.
18 Minerva C.R. Camp
19 Albuquerque, NM
20 Bannerman & Johnson, P.A.
21 Margaret Graham
1 Albuquerque, NM
2 for Appellants
3 MEMORANDUM OPINION
4 VANZI, Judge.
5 {1} Appellants Employer/Insurer Thunderbird Supply Co. and Insurer Continental
6 Western Insurance of the Union Standard Insurance Group (collectively, Insurer)
7 appeal from the workers’ compensation judge’s (WCJ) ruling that Appellee Pete
8 Leyba’s (Worker) second work accident did not cause or contribute to Worker’s
9 shoulder injury from his first work accident. [RP Vol.II/248] Our notice proposed to
10 affirm, and in response, Insurer filed a supplemental record proper and memorandum
11 in opposition. We remain unpersuaded by Insurer’s arguments, and therefore affirm.
12 {2} Insurer continues to dispute the WCJ’s determination that Worker’s disability
13 was solely caused by his November 2008 work-related accident (first accident), and
14 that Worker’s subsequent July 2010 work-related accident (second accident) did not
15 cause or contribute to his injury or disability. [DS 3; MIO 3-17] See generally NMSA
16 1978, § 52-1-28(B) (1987) (“In all cases where the employer or his insurance carrier
17 deny that an alleged disability is a natural and direct result of the accident, the worker
18 must establish that causal connection as a probability by expert testimony of a health
19 care provider . . . testifying within the area of his expertise.”). In reviewing whether
2
1 Worker proved the requisite causal connection, we apply a whole record standard of
2 review and will affirm if, after taking the entire record into consideration, “there is
3 evidence for a reasonable mind to accept as adequate to support the conclusion
4 reached.” Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 128, 767 P.2d 363,
5 367 (Ct. App. 1988), holding modified on other grounds by Delgado v. Phelps Dodge
6 Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. We review the WCJ’s
7 application of the law to the facts, however, de novo. Tom Growney Equip. Co. v.
8 Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320.
9 {3} As extensively detailed in our notice, evidence was presented through the
10 testimony of Dr. Babinski that Worker’s shoulder injury was solely caused by his first
11 accident. [RP Vol.II/253-54] Based on his evaluation of Worker and on his review
12 of Worker’s MRI studies [RP Vol.II/250], Dr. Babinski opined that, to a reasonable
13 degree of medical probability, Worker’s right shoulder injuries – including a rotator
14 cuff tear ultimately necessitating surgical repair – were causally related to the first
15 accident [RP Vol.II/239, 250], and that the second accident provided only a temporary
16 flare-up of Worker’s shoulder injury that did not materially change the nature of
17 Worker’s shoulder injury. [RP Vol.II/229, 240, 250-51, 254] Consistent with Dr.
18 Babinski’s opinion, Worker’s complaints of shoulder pain continued to worsen
19 following the first accident [RP Vol.II/237] and Worker did not have lasting relief
20 from the shoulder pain between the first and second accidents. [RP Vol.II/250]
3
1 {4} Despite the foregoing, however, Insurer continues its efforts to cast doubt on
2 Dr. Babinski’s causation testimony. In this regard, Insurer maintains that Dr.
3 Babinski’s causation testimony was “unreliable” on the asserted basis that Worker
4 misrepresented his medical history. [MIO 3, 7] As support for this assertion, Insurer
5 emphasizes that “Worker did not mention or explain the mechanism of the second
6 injury at the October 18, 2010, visit with Dr. Babinski.” [DS 5-6, 7; MIO 3, 4, 6] and
7 that Dr. Babinski “could not tell the judge the mechanism or date of the second
8 injury.” [MIO 4, 6] As provided in our notice, however, these asserted deficiencies
9 were a matter for the WCJ as fact finder to consider when weighing the evidence. See
10 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 92611 (stating that it is for the WCJ as the fact finder to assess credibility and weigh the
12 evidence).
13 {5} We note also that, while Insurer emphasizes that Dr. Babinski had only
14 reviewed one MRI study at Worker’s initial October 18, 2010, office visit [MIO 3-4],
15 evidence was introduced that, ultimately, Dr. Babinski had knowledge of both work
16 place accidents [RP Vol.II/250] and reviewed separate MRI studies of Worker’s right
17 shoulder taken after both the first and second accidents. [RP Vol.II/229, 239, 250]
18 Moreover, to the extent Dr. Babinski did not have complete medical records from Drs.
19 Ang, Thoms, or Kamps in his file [MIO 6], we note that this too was a matter for the
20 WCJ to consider in weighing the evidence, id., and that Dr. Babinski nonetheless was
4
1 not prohibited from basing his opinion on his own evaluation of Worker and on his
2 own review of Worker’s MRI’s. Thus, although Dr. Kamps had a different medical
3 opinion than Dr. Babinski [MIO 9-10] and viewed the MRI results differently than did
4 Dr. Babinski [MIO 9], it was the WCJ’s prerogative as fact finder to rely on Dr.
5 Babinski’s assessment of Worker’s injury. See id.6 {6} Further, while Insurer maintains that Worker’s repetitive use of his shoulder
7 after the first accident could have caused Worker’s bicep tear such that Worker did not
8 become a surgical candidate until after the second accident [MIO 8, 10], the WCJ as
9 fact finder was entitled to rely on Dr. Babinski’s testimony that the second accident
10 provided only a temporary flare-up of Worker’s shoulder injury that did not materially
11 change the nature of Worker’s shoulder injury. [RP Vol.II/229, 240, 250-51, 254] In
12 doing so, the WCJ could have considered, among other matters, evidence that while
13 Worker did not have surgery after the first accident, Worker elected not to because he
14 desired to obtain a second opinion. [RP Vol.II/227, 236, 249]
15 {7} In sum, because it was within the WCJ’s prerogative to weigh conflicting
16 evidence and because the MRI results may be viewed to support the WCJ’s conclusion
17 that Worker’s shoulder injury was causally related only to the first accident, but not
18 the second work accident, we conclude that the evidence supports the WCJ’s ruling
19 that Worker’s injury was solely caused by the first accident. [RP Vol.II/253-54] See
20 DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 3415
1 (“Substantial evidence on the record as a whole is evidence demonstrating the
2 reasonableness of [the WCJ’s] decision, and we neither reweigh the evidence nor
3 replace the fact finder’s conclusions with our own.”). We therefore affirm.
4 {8} IT IS SO ORDERED.
5 __________________________________
6 LINDA M. VANZI, Judge
7 WE CONCUR:
8 _________________________________
9 JAMES J. WECHSLER, Judge
10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge
6