Barraza-Cervantes v. Concrete

CourtCourt of Appeals of New Mexico
Docket NumberNo. A-1-CA-37542,A-1-CA-37542
Decision Date11 January 2021

and NEW MEXICO MUTUAL INSURANCE COMPANY, Employer/Insurer-Appellees.

No. A-1-CA-37542


January 11, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

Reginald C. Woodard, Workers' Compensation Judge

LeeAnn Ortiz
Albuquerque, NM

for Appellant

Law Office of Nathan Cobb LLC
Nathan A. Cobb
Nathan D. Pederson
Albuquerque, NM

for Appellees


ATTREP, Judge.

{1} Jessie Barraza-Cervantes (Worker) appeals from a Workers' Compensation Judge's (WCJ) compensation order limiting his permanent partial disability (PPD) to scheduled injury benefits under NMSA 1978, Section 52-1-43 (2003). Worker raises two issues on appeal: (1) the WCJ erred in finding that Worker failed to establish a separate and distinct nonscheduled injury to his nervous system, which, if established, would have entitled him to greater PPD benefits under NMSA 1978, Section 52-1-42 (1990,

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amended 2015); and (2) the WCJ erred by denying Worker's request to call the insurance adjuster as a witness at trial. We affirm.


{2} Because this is a memorandum opinion and the parties are familiar with the facts of this case, we set forth only those facts that are necessary for our resolution of this appeal. Worker injured his left ankle in 2014 while working as a laborer for Complete Concrete & Excavating.1 Several months later, Victoria Matt, MD, performed surgery on Worker's ankle. At a follow-up appointment in April 2015, Worker told Dr. Matt that he thought he might have complex regional pain syndrome (CRPS). Dr. Matt, however, did not diagnose Worker with CRPS; instead, she placed Worker at maximum medical improvement (MMI) for his injury and referred him to Christopher Patton, DO, for an impairment rating. Dr. Patton determined that Worker showed no signs of CRPS and gave an impairment rating based on the injury to Worker's left ankle and ongoing pain.

{3} Worker filed a complaint with the Workers' Compensation Administration (WCA), seeking, in relevant part, PPD benefits based on a diagnosis of CRPS. The parties subsequently stipulated to Worker receiving an independent medical examination (IME). The two medical professionals who performed the IME, Kathy Head, JD, MD, and Irwin Isaacs, MD, did not diagnose Worker with CRPS. Instead, the IME panel diagnosed Worker with "left ankle sprain status post[-]surgical intervention and ongoing left ankle pain." Given Worker's ongoing pain, the panel determined that Worker had not reached MMI and, therefore, could not offer an impairment rating. The IME panel recommended that Worker see John Panek, DPM, for pain management and treatment options.

{4} Worker subsequently changed his authorized health care provider to Miguel Pupiales, MD, who referred Worker to Dr. Panek. Dr. Panek and Dr. Pupiales treated Worker concurrently for a period of time. Dr. Pupiales initially diagnosed Worker with left ankle neuropathy; he did not diagnose Worker with CRPS, although he noted that Worker showed some signs of CRPS. Over the next several months, Worker received a series of steroid injections from Dr. Panek. On Worker's last visit with Dr. Panek, Dr. Panek noted he did "not see the typical symptoms related to CRPS." Worker continued to receive care from Dr. Pupiales, and approximately one month later, Dr. Pupiales diagnosed Worker with CRPS. Worker later reported that his pain was beginning to spread, and Dr. Pupiales referred Worker to Dr. Michael Malizzo for consideration of a spinal cord stimulator trial and a second diagnosis of CRPS. Worker never visited Dr. Malizzo, however, because Employer/Insurer's insurance adjuster, Ms. Andrea Kubler, did not approve the referral.

{5} Employer/Insurer challenged Dr. Pupiales's diagnosis of CRPS, filing its own complaints with the WCA. The parties agreed to depose Dr. Pupiales and Dr. Panek and submit the depositions to the IME panel for a second IME. After reviewing the depositions of Dr. Pupiales and Dr. Panek and examining Worker themselves, Dr. Head

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and Dr. Isaacs concluded in their second IME report that Worker "does not have the diagnosis of [CRPS]." Instead, the IME panel diagnosed Worker with chronic left ankle pain, left ankle neuropathic pain, and left ankle nociceptive pain. The panel also placed Worker at MMI as of his final appointment with Dr. Panek.

{6} The IME panel determined that it could rate Worker's impairment in one of two ways using the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (Guides). First, by using Chapter 3 of the Guides pertaining to pain-related impairment, Worker could be assigned a one percent whole person impairment rating. Second, by using Chapter 16 of the Guides pertaining to the lower extremities, Worker could be assigned a five percent lower extremity impairment rating. The IME panel opined, based on its experience and training, that the latter method was "the most appropriate methodology to rate" Worker's impairment.

{7} The parties—disputing, among other things, whether Worker suffered from a separate and distinct impairment to a nonscheduled body member—proceeded to trial in July 2018. Worker subpoenaed Ms. Kubler to testify at trial in an attempt to discover why she did not approve Dr. Pupiales's referral to Dr. Malizzo and Worker's additional request for a follow-up visit with Dr. Patton. Upon motion by Employer/Insurer, the WCJ quashed the subpoena. At trial, the WCJ reviewed the medical records and depositions of the treating and IME doctors and heard testimony from Worker. The WCJ found that Worker did not suffer from CRPS and that his nerve-related pain was not separate from his ankle injury. The WCJ thus limited Worker's PPD benefits to 115 weeks following MMI as an injury to a scheduled body member, i.e., Worker's left ankle, under Section 52-1-43(32). This appeal followed.


{8} Worker first argues that the WCJ erred in determining Worker did not suffer from a separate and distinct injury to his nervous system. On this basis, Worker contends he is entitled to PPD benefits for a nonscheduled injury under Section 52-1-42, not the scheduled injury benefits the WCJ awarded him under Section 52-1-43. In addition, Worker argues that the WCJ erred in refusing to allow him to call Ms. Kubler as a witness at trial.

I. Permanent Partial Disability Benefits

{9} To be entitled to PPD benefits under Section 52-1-42, Worker had the burden of showing he "suffered a separate and distinct impairment to a nonscheduled body part." Jurado v. Levi Strauss & Co., 1995-NMCA-129, ¶ 11, 120 N.M. 801, 907 P.2d 205. The WCJ found that Worker did not "suffer[] any job[-]related injuries . . . other than injury to his left ankle." Given the WCJ's determination that Worker's injury fell within Section 52-1-43(A)(32), the WCJ limited Worker's recovery to scheduled injury benefits. See Torres v. Plastech Corp., 1997-NMSC-053, ¶ 23, 124 N.M. 197, 947 P.2d 154 ("A worker will receive scheduled injury benefits if he or she suffers from a physical impairment which creates neither a total disability nor a separate and distinct injury to a non-scheduled

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member."); see also Hise Constr. v. Candelaria, 1982-NMSC-109, ¶ 11, 98 N.M. 759, 652 P.2d 1210 ("[T]he only partial disability benefits available are those in Section 52-1-43 if the injury is solely to a scheduled member."). Worker argues on appeal that the WCJ erred by not finding he also suffered either from CRPS or neuropathic pain, which, Worker contends, involves a separate and distinct injury to his sympathetic nervous system or peripheral nervous system, respectively. Because the nervous system is not a scheduled body member under Section 52-1-43, Worker asserts the WCJ should have awarded him PPD benefits for a longer period under Section 52-1-42. See Jurado, 1995-NMCA-129, ¶ 11 ("For [a w]orker to receive...

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