Melendez v. Salls Brothers

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOSE MELENDEZ,
3 Worker-Appellant,
4 v. No. 32,293
5 SALLS BROTHERS CONSTRUCTION,
6 INC. and BITUMINOUS INSURANCE CO.,
7 Employer/Insurer-Appellee.
8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
9 Terry S. Kramer, Workers’ Compensation Judge
10 Law Office of Mel B. O’Reilly, LLC
11 Mel B. O’Reilly
12 Albuquerque, NM
13 for Appellant
14 Doughty & West PA
15 Minerva Camp
16 Albuquerque, NM
17 for Appellees
18 MEMORANDUM OPINION
19 SUTIN, Judge.
1 Worker appeals an order of the workers’ compensation judge (WCJ) awarding
2 Worker temporary total disability payments and permanent partial disability benefits,
3 but denying modifier benefits and rejecting Worker’s claim that he had not yet
4 reached maximum medical improvement (MMI). We proposed to affirm in a notice
5 of proposed summary disposition, and Employer and Insurer (Employer) filed a
6 memorandum in support of our proposed disposition.
7 Worker filed a motion for an extension of time to file his memorandum in
8 opposition, which is granted. After reviewing the arguments contained in Worker’s
9 memorandum in opposition and Employer’s memorandum in support, we remain
10 unconvinced that our proposed disposition is in error. Therefore, we affirm the order
11 of the WCJ.
12 In his docketing statement, Worker claimed that the WCJ erred in finding that
13 Worker was at MMI as of October 23, 2009, because he claimed that the issue of
14 whether Worker’s groin pain was caused by an obturator hernia remained outstanding,
15 and he claimed that he was entitled to a laparoscopy and possibly exploratory surgery
16 to diagnose and potentially treat the obturator hernia. [DS 2-3] In our notice of
17 proposed disposition, we reviewed the evidence and testimony introduced at the
18 hearing and proposed to hold that there was sufficient evidence to support the WCJ’s
19 decision that the possibility that Worker’s groin pain was caused by an obturator
20 hernia was too speculative to warrant additional treatment or testing. [RP 196 (¶¶ 36-
21 37)] Cf. Yeager v. St. Vincent Hosp., 1999-NMCA-020, ¶ 18, 126 N.M. 598, 973 P.2d
22 850 (recognizing that the worker has the burden to provide any medical evidence
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1 necessary to prove he has a compensable claim). We also observed that Worker had
2 failed to inform us of the evidence and testimony introduced in support of the WCJ’s
3 decision despite his obligation as Appellant to provide this information. See Rule 12-
4 208(D)(3) NMRA (stating that the docketing statement shall contain “a concise,
5 accurate statement of the case summarizing all facts material to a consideration of the
6 issues presented”).
7 In his memorandum in opposition, Worker appears to acknowledge that a CAT
8 scan, along with a physical examination, may be instrumental in diagnosing an
9 obturator hernia, that Dr. Reddy and Dr. Allen both reported that a CAT scan was
10 done, and that the CAT scan did not indicate the presence of an obturator hernia.
11 [MIO 1-2] However, he claims that Dr. Allen reported that the results of the scan
12 were inconclusive and that Dr. Reddy stated that he had not seen the medical records
13 of Worker at the time he examined Worker. [MIO 1-2] We are unpersuaded that
14 Worker’s contentions warrant reversal of the WCJ’s determination that any possibility
15 of an obturator hernia was too speculative to require additional testing or treatment.
16 In our notice, we observed that Dr. Allen testified that the CAT scan did not
17 show an obturator hernia [RP 185 (¶ 95)], even though he also acknowledged that he
18 was not comfortable making a determination as to whether Worker might have an
19 obturator hernia. [RP 184 (¶¶ 84, 88-89); RP 196 (¶ 31)] Furthermore, Dr. Reddy
20 testified that his examination of Worker failed to detect a hernia, that he saw no
21 evidence of any hernia after performing a limited ultrasound, and that Worker failed
22 to exhibit any symptoms of a hernia. [RP 187 (¶¶ 112-114); RP 188 (¶ 121); RP 196
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1 (¶¶ 33-34)] Finally, even though Dr. Reddy had not seen Worker’s medical records
2 before he examined Worker [MIO 1-2], the record indicates that Dr. Reddy had
3 reviewed the CAT scan before the hearing, he testified that a CAT scan would pick
4 up a hernia if one was present, and he did not detect an obturator hernia on the CAT
5 scan. [RP 187 (¶¶ 119-120); RP 196 (¶¶ 33-34)] In his memorandum in opposition,
6 Worker fails to dispute any of these observations from our notice of proposed
7 summary disposition.
8 As discussed in our notice of proposed summary disposition, we will neither
9 reweigh the evidence nor substitute our judgment for that of the WCJ. See DeWitt v.
10 Rent-A-Center, Inc., 2009-NMSC-032, ¶ 22, 146 N.M. 453, 212 P.3d 341. Therefore,
11 for the reasons discussed earlier and in our notice of proposed summary disposition,
12 we remain convinced that there was sufficient evidence to support the WCJ’s
13 conclusions that Worker received reasonable and necessary care to address his
14 complaints and that any further testing to determine whether Worker had an obturator
15 hernia was not reasonably necessary. [RP 196 (¶¶ 36-37)] Cf. Tallman v. ABF
16 (Arkansas Best Freight), 108 N.M. 124, 127-130, 767 P.2d 363, 366-369 (Ct. App.
17 1988) (recognizing that the whole record standard of review applicable when
18 considering whether sufficient evidence supports the WCJ’s findings and conclusions
19 does not permit us to reweigh the evidence or make independent findings). Therefore,
20 we affirm on this issue.
21 Worker also claims that Employer failed to prove that Worker is not legally
22 entitled to work in the United States and thus he was erroneously deprived of modifier
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1 benefits. [DS 3-4; MIO 1-2; RP 199 (¶ 10)] See generally Gonzalez v. Performance
2 Painting, Inc., 2011-NMCA-025, ¶¶ 2, 27-33, 150 N.M. 306, 258 P.3d 1098 (holding
3 that an undocumented worker who is injured on the job is not entitled to modifier
4 benefits pursuant to NMSA 1978, § 52-1-26(C) and (D) (1990), because an employer
5 is legally prohibited from rehiring an injured worker who is not authorized to work
6 in the United States), cert. granted, 2011-NMCERT-003, 150 N.M. 620, 264 P.3d
7 521. In our notice, we considered the evidence reviewed in the record which indicated
8 that Worker is not a United States citizen, he has no visas or permits, and there are no
9 other circumstances allowing him to work legally in the United States. [RP 189 (¶ 8),
10 197 (¶¶ 48, 55), 198 (¶¶ 56-58)] Moreover, even if Worker provided Employer with
11 a copy of his social security card at the time that he was hired [RP 189 (¶ 7)], the
12 record reflects that Worker could not provide a copy of the card throughout the course
13 of the lawsuit [RP 177 (¶ 29)], and that Worker could not remember how or from
14 where he obtained his social security card. [RP 177 (¶ 33)] Additionally, the record
15 reflects that in response to the question “did you pay someone for your social security
16 card[,]” Worker pleaded the fifth. [RP 177 (¶ 34)]
17 In his memorandum in opposition, Worker again claims that Employer did not
18 offer proof that Worker was an undocumented Worker pursuant to federal law. [MIO
19 2] However, he fails to rebut the observations and analysis contained in our notice of
20 proposed disposition on this issue, and he fails to indicate that he offered any
21 additional evidence in support of his contention that he was legally authorized to work
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1 in the United States. Therefore, for the reasons set forth in our notice of proposed
2 summary disposition, we affirm on this issue. See id.3 Conclusion
4 For the reasons set forth in this Opinion and those discussed in our notice of
5 proposed summary disposition, we affirm the order of the WCJ.
6 IT IS SO ORDERED.
7 __________________________________
8 JONATHAN B. SUTIN, Judge
9 WE CONCUR:
10 ___________________________________
11 CELIA FOY CASTILLO, Chief Judge
12 ___________________________________
13 JAMES J. WECHSLER, Judge
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