Baca v. Bueno Foods
| Decision Date | 08 December 1988 |
| Docket Number | No. 10542,10542 |
| Citation | 108 N.M. 98,766 P.2d 1332,1988 NMCA 112 |
| Parties | Josephine BACA, Claimant-Appellee, v. BUENO FOODS and Safeco Insurance Company, Respondents-Appellants. |
| Court | Court of Appeals of New Mexico |
The Workers' Compensation Division's (WCD) hearing officer found that claimant, Josephine Baca, injured a finger and her back in an accident arising out of her employment with Bueno Foods and had been unable to perform job duties since then. He granted her judgment for temporary total disability benefits because her injury had not yet reached maximum medical improvement. We reverse the award for temporary total disability after considering: (1) the meaning of "maximum medical improvement" in the definition of "temporary total disability"; (2) whether there was substantial evidence to support the hearing officer's finding of no maximum medical improvement; and (3) the allocation of the burden of proof on that issue. The hearing officer also ordered respondents, Bueno Foods and Safeco Insurance Company, to pay the bills from two doctors Baca consulted. We reverse the judgment requiring respondents to pay the bills and remand for further findings with respect to the bill of one of the doctors.
The issue of temporary total disability arises under transient provisions of the New Mexico Workers' Compensation Act. NMSA 1978, Secs. 52-1-1 to -69 (Cum.Supp.1986) (the Interim Act). Section 52-1-26 of the Interim Act defines "temporary total disability" as "the inability of the workman, by reason of accidental injury arising out of and in the course of his employment, to perform his duties prior to the date of his maximum medical improvement." (Emphasis added.) Section 52-1-27 of the Interim Act defines "date of maximum medical improvement" as "the date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability." After reaching maximum medical improvement the employee may receive scheduled benefits or permanent total or partial disability benefits provided by Sections 52-1-41 to -43 of the Interim Act.
This statutory scheme is common in the United States.
In the usual industrial injury situation, there is a period of healing and complete wage loss, during which, subject to any applicable waiting period, temporary total is payable. This is followed by a recovery, or stabilization of the condition, and probably resumption of work, and no complex questions ordinarily arise.
The commonest question is: when does the "healing period" end and "stabilization" occur? The answer to this question determines in most states when temporary benefits cease and when the extent of permanent disability can be appraised, for purposes of making either a permanent partial or a permanent total award.
2 A. Larson, The Law of Workmen's Compensation Sec. 57.12(b) at 10-14 to 10-17 (1987) (footnotes omitted).
Respondents contend that no substantial evidence supports the finding that Baca had not reached maximum medical improvement. In Tallman v. ABF, 108 N.M. 124, 767 P.2d 363 (App. Filed October 13, 1988), we held that whole record review as announced in Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 681 P.2d 717 (1984), applies to appeals from the WCD. Following Tallman, we view "the live witness testimony as the fact finder did and considering all other evidence, favorable and unfavorable, and disregarding that which is discredited, we then decide if there is substantial evidence in the whole record to support the agency's finding or decision." Id. at 128, 767 P.2d at 367.
The statutory definition of date of maximum medical improvement states that the determination of the date must be "based upon reasonable medical probability." To prove a proposition to a reasonable medical probability requires expert medical testimony establishing that the proposition is more likely than not. See Archuleta v. Safeway Stores, Inc., 104 N.M. 769, 771, 727 P.2d 77, 79 (Ct.App.1986) (); Sanchez v. Molycorp, Inc., 103 N.M. 148, 152, 703 P.2d 925, 929 (Ct.App.1985). Therefore, the substantial evidence necessary to support a finding of no maximum medical improvement must be expert medical testimony that there is a probability of further recovery from or lasting improvement to the injury.
To support the hearing officer's finding, Baca relies on the deposition testimony of Dr. Norman F. Moon, which was admitted into evidence at the hearing. Dr. Moon testified that as a result of her accident, Baca sustained chronic cervical, dorsal, and lumbosacral muscular strain, a chronic anxiety reaction and mild hysterical reaction, and a chronic mallet finger. He also testified that she suffered from generalized osteoporosis; but he did not attribute that condition to the accident. He noted that she had received medication for her back.
Baca's answer brief cites the following passages in Dr. Moon's testimony as showing that she had not reached maximum medical improvement:
Passage 1
Q. At this time, what would be your recommendation as to future treatment for Ms. Baca?
A. Well, I still think she ought to see the psychiatrist, and have some psychological testing, and then be put on a conservative treatment program, and perhaps kept on her present medication program, because she does get improvement with that. I think that she just needs to be more thoroughly evaluated to find out what are the problems. She may very well need some psychological or psychiatric medication program.
Q. Why does she need care?
A. I think she needs care because she is still symptomatic. I think that anybody that is still having some problems, physical, mental, or both, really should be under care. I don't think she is getting any better without care. I think she is, in a lot of ways, getting worse. Certainly from a psychological standpoint, as I implied in my second letter, that she is getting worse from that standpoint. I don't think it is good for people who need treatment not to be treated.
The testimony concerning Baca's mental condition is irrelevant, because the hearing officer found only her back and finger ailments were caused by her accident. The parties' proposed findings and conclusions show there is no dispute that Baca's finger had reached maximum medical improvement. The testimony concerning her improvement from her medication program, however, supports a finding that her back ailment could benefit from further treatment.
The hearing officer may have decided that a possible benefit from future treatment suffices to establish that the employee has not yet reached maximum medical improvement. But continuing treatment is consistent with maximum medical improvement if it produces improvement that is only symptomatic relief.
The fact that some treatment is still necessary, such as physical therapy or drugs, does not necessarily rule out a finding that the condition has become stabilized, if the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve that condition.... * The persistence of pain may not of itself prevent a finding that the healing period is over, even if the intensity of the pain fluctuates from time to time, provided again that the underlying condition is stable.
A. Larson, supra, Sec. 57.12(c) at 10-25 to -29 (footnotes omitted).
This court has stated, "The need for further medical treatment is not incompatible with the status of permanent disability." Lane v. Levi Strauss & Co., 92 N.M. 504, 506, 590 P.2d 652, 654 (Ct.App.1979) (citation omitted). The Lane opinion cited with approval Home Insurance Co. v. Industrial Commission, 23 Ariz.App. 90, 530 P.2d 1123 (1975), in which a worker rendered quadriplegic was held to be permanently rather than temporarily disabled, although his general health condition was expected to fluctuate and he was still subject to a number of possible complications, such as breakdown of the skin, genitourinary infection, respiratory complications, and metabolism disturbances. The Arizona court held that such a circumstance did not constitute "the type of continuing need for medical treatment which will prevent the workman's condition from becoming stationary so as to entitle him to a permanent, as opposed to a temporary, award." 23 Ariz.App. at 96, 530 P.2d at 1129. See Continental Cas. Co. v. Industrial Comm'n, 23 Ariz.App. 294, 532 P.2d 869 (1975) (); Rose v. Thornton & Florence Elec. Co., 4 Kan.App.2d 669, 609 P.2d 1180 (1980).
These authorities elucidate the statutory definition of maximum medical improvement. In applying the language "further recovery from or lasting improvement to an injury," we look for a recovery--not temporary improvement, but lasting improvement; and the recovery must be from the injury itself, the underlying condition, not just from the symptoms it creates.
Dr. Moon's testimony that Baca "does get improvement" from her medication does not satisfy the statutory definition because the type of improvement is not specified as lasting improvement to the injury. On the contrary, other testimony by Dr. Moon shows that the improvement to which he was referring was symptomatic relief. During his cross-examination, immediately after Passage 2, he testified:
Q. But with the mild symptoms that she has, is orthopedic care really going to benefit her at all at this point?
A. Well, she is on some medication and she has claimed to me that that medication made her...
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