Romero v. John Brooks

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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JUDY ROMERO,
8 Worker-Appellant,
9 v. NO. 28,931
10 JOHN BROOKS VALUE WAY and
11 FOOD INDUSTRY/SELF INSURANCE FUND
12 OF NEW MEXICO,
13 Employer/Insurer-Appellees.
14 APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION
15 Helen L. Stirling, Workers’ Compensation Judge
16 Bogardus & Scott, Attorneys at Law, P.C.
17 Robert L. Scott
18 Albuquerque, NM
19 Joshua A. Spencer
20 Albuquerque, NM
21 for Appellant
22 Modrall, Sperling, Roehl, Harris & Sisk, P.A.
23 Max J. Madrid
24 H. Jesse Jacobus III
25 Albuquerque, NM
26 for Appellees
2
1 MEMORANDUM OPINION
2 BUSTAMANTE, Judge.
3 Judy Romero (Worker) appeals from a workers’ compensation order denying
4 her claims for benefits. Worker argues: (1) that she was entitled to temporary total
5 disability benefits because John Brooks Value Way (Employer) failed to formally
6 extend a return-to-work offer, and (2) that the WCJ erred by not accepting the
7 testimony of Dr. Richard Weber regarding Worker’s maximum medical improvement
8 and impairment rating. The WCJ’s findings on both issues are supported by
9 substantial evidence and we affirm.
10 BACKGROUND
11 Worker injured her back while stocking liquor shelves for Employer in
12 September 2006. In the days following her injury, Worker saw Dr. Gordon Eatman,
13 a chiropractor, and also made a trip to the emergency room for treatment. Worker was
14 diagnosed with a back strain and taken off work from September 14 to September 17,
15 and allowed to return to work with restrictions through September 24. Before
16 returning to work, Worker took vacation leave for one week, subsequently returned
17 to work for two days, and then on or about September 30, 2006, she determined that
18 she could not continue working and never again returned to work.
3
1 In February 2007 Worker filed a complaint with the Workers’ Compensation
2 Administration seeking temporary total disability (TTD), permanent partial disability
3 (PPD), medical benefits, and attorney fees. After a trial on the merits, the WCJ
4 awarded Worker medical benefits for the treatment of her injuries and her past
5 medical bills only. The WCJ concluded that Worker was not entitled to TTD because
6 she had no medical reason to stop coming to work after September 30, 2006. The
7 WCJ also concluded that Worker was not entitled to PPD because there was no
8 credible evidence to determine whether Worker reached maximum medical
9 improvement (MMI) or that Worker has any permanent impairment rating attributable
10 to her injury.
11 STANDARD OF REVIEW
12 “In reviewing the WCJ’s decision, we employ the whole record review.” Smith
13 v. Cutler Repaving, 1999-NMCA-030, ¶ 9, 126 N.M. 725, 974 P.2d 1182. “[W]e
14 review the whole record to determine whether there is substantial evidence to support
15 the WCJ’s findings.” Henington v. Technical-Vocational Inst., 2002-NMCA-025, ¶
16 19, 131 N.M. 655, 41 P.3d 923. “In making this determination, we view the evidence
17 in the light most favorable to the finding below.” Id. “The question is whether,
18 viewed in the light of the whole record, the finding is reasonable.” Id. “[T]he trial
19 court is in a better position [than is an appellate court] to judge the credibility of
4
1 witnesses and resolve questions of fact.” Santa Fe Pac. Gold Corp. v. United Nuclear
2 Corp., 2007-NMCA-133, ¶ 33, 143 N.M. 215, 175 P.3d 309 (alterations in original).
3 DISCUSSION
4 1. Substantial Evidence Supports the WCJ’s Findings that Worker is not
5 Entitled to TTD.
6 Under NMSA 1978, Section 52-1-25.1(B) (2005), a worker is not entitled to
7 TTD benefits if after a worker is released to go back to work and the employer offers
8 work at the worker’s pre-injury wage prior to the date of MMI. Although Worker did
9 return to work shortly after her injury, Worker argues that this section required
10 Employer to extend a formal offer to Worker and that because Employer did not, she
11 was entitled to TTD.
12 Substantial evidence supports the WCJ’s conclusion that Worker was
13 effectively offered to return to work. Worker’s deposition testimony was she did in
14 fact return to work for Employer for two days, and then voluntarily stopped coming
15 to work even though no health care professional had taken Worker off work other than
16 for the few days following her injury. The WCJ found this evidence sufficient to infer
17 that Worker was offered to return to work. Worker cites no authority to suggest that
18 in addition to being allowed to return to work regular shifts without objection or
19 condition by Employer, that Employer was required to also formally request that
20 Worker return. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-
5
1 NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (stating that this Court will not
2 consider propositions that are unsupported by citation to authority). The evidence
3 that Worker returned to work without incident and voluntarily stopped coming to
4 work is sufficient to conclude that the intent of Section 52-1-25.1, with respect to “the
5 employer offer[ing] work,” was satisfied. See Landavazo v. Sanchez, 111 N.M. 137,
6 138, 802 P.2d 1283, 1284 (1990) (stating that substantial evidence is such relevant
7 evidence that a reasonable mind would find adequate to support a conclusion).
8 Accordingly, we affirm the findings of the WCJ that Worker was not entitled to TTD.
9 2. Substantial Evidence Supports the WCJ’s Findings that Worker is not
10 Entitled to PPD.
11 Under NMSA 1978, Section 52-1-26(B) (1990), a worker may be entitled to
12 PPD when the worker suffers a permanent impairment. Dr. Richard Weber provided
13 the only medical testimony relating to Worker’s MMI and impairment rating. Worker
14 argues that, pursuant to the so-called uncontradicted medical evidence rule, the WCJ
15 was required to accept Dr. Weber’s uncontradicted testimony as proof of the date of
16 Worker’s MMI and impairment rating, even where the WCJ found that Dr. Weber’s
17 testimony lacked credibility.
18 Worker cites Hernandez v. Mead Foods, Inc., 104 N.M. 67, 70, 716 P.2d 645,
19 648 (Ct. App. 1986), limited on other grounds by Graham v. Presbyterian Hospital
20 Center, 104 N.M. 490, 492, 723 P.2d 259, 261 (Ct. App. 1986), for the proposition
6
1 that the uncontradicted medical evidence rule “is an exception to the general rule that
2 a trial court can accept or reject expert opinion as it sees fit.” Regardless of the
3 statement in Hernandez that this “exception to the general rule only appl[ies] to the
4 causation issue,” id., Worker argues that the rule should be extended to also apply to
5 the MMI and impairment rating components of the PPD section.
6 Contrary to Worker’s argument, the WCJ was not required to accept Dr.
7 Weber’s impairment rating or MMI testimony. The case of Peterson v. Northern
8 Home Care, 1996-NMCA-030, 121 N.M. 439, 912 P.2d 831, addressed an identical
9 issue. There, we recognized that even if the uncontradicted evidence rule was
10 analogous to issues of impairment, there are exceptions which allow a WCJ to reject
11 a purported impairment rating. Id. ¶ 10. Specifically,
12 [u]ncontradicted testimony need not be accepted as true if (1) the witness
13 is shown to be unworthy of belief, or (2) his testimony is equivocal or
14 contains inherent improbabilities, (3) concerns a transaction surrounded
15 by suspicious circumstances, or (4) is contradicted, or subjected to
16 reasonable doubt as to its truth or veracity, by legitimate inferences
17 drawn from the facts and circumstances of the case.
18 Hernandez, 104 N.M. at 70-71, 716 P.2d at 648-49. In Peterson, we affirmed the
19 AC’s conclusion that the uncontradicted testimony as to impairment rating was found
20 to be unworthy of belief and that the WCJ was justified in finding no impairment.
21 Peterson, 1996-NMCA-030, ¶ 10.
7
1 Here, the WCJ found that Dr. Weber’s testimony as to MMI was equivocal and
2 unworthy of belief because it was stated as a probability and only after being “lead to
3 agree” that Worker’s MMI coincided with the date of his deposition. When Dr.
4 Weber was asked whether Worker had reached MMI he responded, “I think she’s
5 getting there . . . you know, who knows what MMI is in these kinds] of cases. You
6 know, it’s really tough to say . . . we just haven’t found it.” Dr Weber was asked
7 whether Worker would reach MMI in two weeks, and his response indicated that it
8 was unclear what exactly Worker was suffering from. Dr. Weber was later told “[j]ust
9 so I’m clear with the judge . . . [t]oday . . . she is not at MMI?” to which Dr. Weber
10 finally responded, “if you want to set a time, we’ll say that she’s at MMI at this
11 point.” Worker relies on this last statement as uncontradicted evidence that worker
12 reached MMI during this point in Dr. Weber’s testimony. However, in light of the
13 circumstances, the WCJ was justified in rejecting Dr. Weber’s testimony as to MMI
14 based on the equivocal nature of the testimony and the inferences of reasonable doubt
15 as to its truth or veracity that can be reasonably drawn.
16 The WCJ also found that Dr. Weber’s testimony as to Workers’ impairment
17 rating was similarly unworthy of belief. When asked about Worker’s impairment
18 rating, Dr. Weber testified “the problem is an objective finding . . . it’s very vague .
19 . . I don’t have anything, right at this point, that I would say is an impairment rating.”
8
1 “I probably could [assign an impairment rating] I just don’t do that much anymore.”
2 Dr. Weber also testified that in order to determine if Worker should be limited to some
3 maximum lifting capacity at work that he would “defer . . . to a functional capacity
4 assessment . . . that would be more objective than for me to just put a number on it.”
5 Later, Dr. Weber stated that Worker’s impairment rating would probably be in the
6 realm of five to eight percent. We again conclude that, based on the equivocal nature
7 of Dr. Weber’s overall testimony on this issue, and the inferences of reasonable doubt
8 that may be drawn from the circumstances, that the WCJ was justified in rejecting his
9 testimony as to Worker’s impairment rating.
10 There was additional evidence that cast doubt on Worker’s impairment rating.
11 Worker does not challenge the WCJ’s findings that Worker’s consistent, objective
12 diagnosis has been that, “not much, if anything, is wrong” with Worker. Based on
13 this, and the nature of Dr. Weber’s testimony, the WCJ was justified in discounting
14 Dr. Weber’s testimony as to MMI and impairment rating and finding that Worker had
15 no physical impairment justifying PPD. See Peterson, 1996-NMCA-030, ¶ 10.
9
1 CONCLUSION
2 For the foregoing reasons, we affirm the decision of the WCJ.
3 IT IS SO ORDERED.
4
5 MICHAEL D. BUSTAMANTE, Judge
6 WE CONCUR:
7
8 CELIA FOY CASTILLO, Judge
9
10 LINDA M. VANZI, Judge
10