Baca v. Los Lunas Cmty. Programs

• Decision Date: 15 December 2010
• Docket Number: No. 29,108.,29,108.
• Citation: 2011 -NMCA- 008,246 P.3d 1070,149 N.M. 198
• Parties: Felix E. BACA, Worker/Appellee/Cross–Appellant,v.LOS LUNAS COMMUNITY PROGRAMS and State Risk Management Division, Employer–Insurer/Appellant/Cross–Appellee.
• Court: Court of Appeals of New Mexico

149 N.M. 198

246 P.3d 1070

2011 -NMCA- 008

Felix E. BACA, Worker/Appellee/Cross–Appellant,

v.LOS LUNAS COMMUNITY PROGRAMS and State Risk Management Division, Employer–Insurer/Appellant/Cross–Appellee.

No. 29,108.

Court of Appeals of New Mexico.

Dec. 15, 2010.

Gerald A. Hanrahan, Albuquerque, NM, for Appellee/Cross–Appellant.Hatcher & Tebo, P.A., Christopher J. Tebo, Scott P. Hatcher, Santa Fe, NM, for Appellant/Cross–Appellee.

OPINION

ROBLES, Judge.

{1} Felix Baca (Worker) was awarded workers' compensation benefits for the care and treatment of post traumatic stress syndrome (PTSD), which he developed as a result of a sexual assault suffered during the course and scope of his employment. Los Lunas Community Programs (Employer) and State Risk Management Division (Insurer) (collectively, Defendants) appeal from the order of the workers' compensation judge (WCJ), claiming that the WCJ improperly concluded that Worker was psychologically unable to provide notice of the sexual assault within the fifteen-day time period required by NMSA 1978, Section 52–1–29(A) (1990) and improperly denied Defendants' request for an independent medical examination (IME) on the issue of causation. Worker filed a cross-appeal, arguing that the WCJ improperly excluded overtime pay from its award of temporary total disability (TTD) benefits under NMSA 1978, Section 52–1–25.1 (2005). We conclude that (1) Worker's notice of injury was timely, (2) the WCJ properly denied Defendants' request for an IME on the issue of causation, and (3) the WCJ improperly excluded overtime pay from its award of TTD benefits. Accordingly, we reverse in part and remand to the WCJ with instructions to recalculate Worker's compensation benefits.

I. BACKGROUND

{2} Employer provides housing facilities and treatment centers in Los Lunas, New Mexico for mentally and physically disabled persons (consumers). Worker is a “Psych Tech” at these facilities and his duties include supervising, caring for, and assisting the consumers both in the home and in the community. In December 2005, Worker was assigned to Cortez House, which housed George Rael, a convicted sex offender.

{3} On December 10, 2005, Worker accompanied Rael on an overnight visit to Clovis, New Mexico. As part of his job duties, Worker was required to share a motel room with Rael. During the overnight visit, Rael, who is physically much larger than Worker, sexually assaulted and sodomized Worker. Afterward, Rael repeatedly threatened to hurt Worker if he ever told anyone about the incident. Given Rael's threats and Worker's shame and fear, Worker did not immediately report the sexual assault.

{4} Approximately two days later, Rael attempted to commit suicide. Worker saved Rael's life by providing emergency medical aid and dialing 911. During an internal investigation into Rael's suicide attempt, Rael reported that Worker had sexually assaulted him during the trip to Clovis. Worker denied the allegation, but did not report that he had been sexually assaulted by Rael.

{5} On December 29, 2005, nineteen days after the incident, Worker informed Employer of the sexual assault. Pursuant to the Employee Assistance Program, Employer referred Worker to Deborah Okon, a clinical psychiatrist, who diagnosed Worker with PTSD. Dr. Okon advised Worker to take time off from work in order to reduce his symptoms, which included anxiety, depression, panic attacks, an inability to eat or sleep, nausea, hyper-vigilance, and flashbacks. On April 1, 2006, Worker returned to work, but was assigned to a different facility because Dr. Okon believed that it would be psychologically harmful for Worker to have contact with Rael at Cortez House. At the new facility, Worker received less overtime hours and, therefore, less overtime pay than he typically earned prior to the sexual assault.

{6} Following a trial on the merits, the WCJ found that the sexual assault was a workers' compensation accident, which arose out of Worker's employment, and awarded compensation benefits for the care and treatment of Worker's PTSD. However, the WCJ rejected Worker's claim that he was entitled to TTD benefits under Section 52–1–25.1(C) for lost overtime pay. Defendants' appeal and Worker's cross-appeal followed. Additional facts and procedural history will be provided as necessary.

II. DISCUSSIONA. Jurisdiction

{7} As a preliminary matter, we address the issue of appellate jurisdiction. See Dixon v. State Taxation & Revenue Dep't, 2004–NMCA–044, ¶ 29, 135 N.M. 431, 89 P.3d 680 (“[J]urisdiction is basic to any appeal, and an appellate court may raise a jurisdictional issue sua sponte.” (internal quotation marks and citation omitted)). Jurisdiction is a question of law, which we review de novo. City of Las Cruces v. Sanchez, 2007–NMSC–042, ¶ 7, 142 N.M. 243, 164 P.3d 942 (“The extent of a court's appellate jurisdiction is a question of law, which we review de novo.”).

{8} Pursuant to Rule 12–601 NMRA, a direct appeal from an administrative agency must be filed within thirty days from the date of the order, decision, or action appealed from. However, NMSA 1978, Section 52–5–8(B) (1989) provides that “[a] decision of the workers' compensation judge is reviewable by the court of appeals in the manner provided for other cases and is subject to stay proceedings as provided by the rules of civil procedure for the district courts [.]” (Emphasis added.) In Bianco v. Horror One Prods., 2009–NMSC–006, ¶ 10, 145 N.M. 551, 202 P.3d 810, the Supreme Court determined that Section 52–5–8 incorporates “the statutory and appellate scheme for taking appeals from district courts into workers' compensation cases.” Thus, the WCJ, like the district court, retains jurisdiction for a period of thirty days to rule on post-judgment motions under NMSA 1978, Section 39–1–1 (1917), and “the time for filing a notice of appeal does not begin to run until the express denial of such motions” under Rule 12–201(D) NMRA. Bianco, 2009–NMSC–006, ¶ 12, 145 N.M. 551, 202 P.3d 810.

{9} In this case, the WCJ filed its final order on August 27, 2008. Sixteen days later, Defendants filed a motion for reconsideration. The WCJ denied Defendants' motion for reconsideration and, twenty days later, Defendants filed their notice of appeal. Pursuant to Section 39–1–1 and Rule 12–201, we conclude that Defendants' notice of appeal was timely filed. Accordingly, we have appellate jurisdiction to address the merits of Defendants' appeal.

B. Standard of Review

{10} “We review factual findings of Workers' Compensation Administration judges under a whole record standard of review.” DeWitt v. Rent–A–Center, Inc., 2009–NMSC–032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “Whole record review involves a review of all the evidence bearing on the WCJ's decision in order to determine if there is substantial evidence to support the result.” Flores v. McKay Oil Corp., 2008–NMCA–123, ¶ 7, 144 N.M. 782, 192 P.3d 777. “Substantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency's decision, and we neither reweigh the evidence nor replace the fact finder's conclusions with our own.” DeWitt, 2009–NMSC–032, ¶ 12, 146 N.M. 453, 212 P.3d 341 (citation omitted).

{11} We review the WCJ's legal conclusions regarding statutory construction de novo. Id. ¶ 14.

We look first to the plain meaning of the statute's words, and we construe the provisions of the [Workers' Compensation Act (Act) ] together to produce a harmonious whole. After we determine the meaning of the statutes, we review the whole record to determine whether the WCJ's findings and award are supported by substantial evidence.

Id. (internal quotation marks and citation omitted).C. Notice

{12} Worker reported the sexual assault to Employer on December 29, 2005, nineteen days after the incident. Worker testified that he did not report the sexual assault sooner because he felt scared and ashamed. Dr. Okon testified that Worker was psychologically unable to report the sexual assault due to

[t]he shame, the intense fear that people go through when they go through a horrible, traumatic event. He was experiencing nausea and exhaustion because he couldn't sleep, he wasn't able to eat, he had just a whole gamut of both psychological and physical responses to this. And that's why I'd say that he couldn't possibly—from the way he presented to me, he was not able to tell.

Additionally, Worker continued to work with Rael after the sexual assault, and Dr. Okon explained that Worker's “fear of being with [Rael]” was an “added component” that contributed to his inability to report the incident.

{13} The WCJ found that “Worker, by reason of his injury, was prevented from giving notice within [fifteen] days of the assault” and, therefore, Worker's late notice was excused under Section 52–1–29(A). The WCJ further found that Employer's failure to establish that Workers' Compensation Administration (WCA) posters had been posted conspicuously around Cortez House at the time of the incident tolled the notice period to sixty days under Section 52–1–29(B). Thus, under both Subsections A and B of the statute, the WCJ concluded that Worker had given timely notice according to law.

{14} On appeal, Defendants claim that the evidence was insufficient to support the WCJ's conclusion that Worker had provided timely notice of his injury. Specifically, Defendants argue that the WCJ's reliance on Dr. Okon's expert medical testimony was flawed because Dr. Okon based her opinion “exclusively on the subjective complaints and self-reports of her patient.” Additionally, Defendants point out that there was no evidence establishing the “verified absence” of WCA posters at Cortez House, rather the witnesses simply could not recall whether such posters had been conspicuously posted.

{15} Section 52–1–29(A) provides, in relevant part:

Any worker claiming to be entitled to compensation from any employer shall give notice in writing to his employer of the...