Blakely v. Lovelace Hosp.
| Decision Date | 28 March 2019 |
| Docket Number | No. A-1-CA-35889,A-1-CA-35889 |
| Parties | KATHY BLAKELY, Worker-Appellant, v. LOVELACE HOSPITAL and HARTFORD INSURANCE COMPANY OF THE MIDWEST, Employer/Insurer-Appellees. |
| Court | Court of Appeals of New Mexico |
This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.
APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers' Compensation Judge
Dunn Law Offices
Rod Dunn
Rio Rancho, NM
for Appellant
Camp Law, LLC
Minerva Camp
Albuquerque, NM
for Appellees
{1} Worker Kathy Blakely appeals from the September 1, 2016, Workers' Compensation Judge's (WCJ) compensation order awarding her temporary total disability (TTD) benefits from April 17, 2015, to January 29, 2016, following an accident she suffered at work. Worker contends that the WCJ's order—specifically its findings and conclusions regarding the date Worker reached maximum medical improvement (MMI) for her work-related right hip injury and the overall compensability of that injury—is not supported by substantial evidence. Concluding that the whole record does not support the WCJ's ruling, we reverse and remand for further proceedings.
{2} On April 17, 2015, Worker, a registered nurse employed by Lovelace Hospital (Employer), was injured in a work-related accident when a patient she was assisting grabbed her arm and pulled her down, causing Worker to hit her right hip and lower back on a toilet. Worker experienced immediate pain in her right hip and back and was referred by Employer to Concentra Medical Center, where she was seen by Dr. David Lyman. Worker received medical treatment and care from various providers, including Dr. Lyman, Dr. Evan Knaus, and Dr. Arnold Kiburz, in the months following the accident and was eventually taken off of workcompletely by Dr. Lyman on June 30, 2015, based upon her complaints of worsening pain.
{3} On January 25, 2016, Employer filed a complaint with the Workers' Compensation Administration (WCA) seeking a determination of compensability and benefits, a suspension or reduction of benefits, and a credit for overpayment. Employer filed the complaint "in the interest [of] . . . see[ing] whether Worker's injuries have reached [maximum medical improvement (MMI)]" and indicated that it was "contemplating] whether a six month re[]evaluation[] with Dr. Lyman . . . would be helpful to assess Worker's achievement of MMI." Employer alternatively posited that an independent medical examination (IME) "may be helpful to allow an objective provider . . . to give clinical opinions on treatment recommendations and achievement of MMI." Neither a reevaluation by Dr. Lyman nor an IME ever occurred.
{4} At the trial held on August 15, 2016, the depositions of Drs. Lyman and Knaus—the only treating physicians of Worker who were deposed—were admitted into evidence. Also admitted were medical records from various physicians and a form letter to health care provider completed by Dr. Kiburz.
{5} In its compensation order, the WCJ first found that Worker "suffered an on-the-job accident on April 17, 2015" in which she "injured her low back and right hip." Regarding Worker's right hip, the WCJ found that "Worker suffered apre[]existing right hip injury" and that she "did not suffer problems to her right hip other than a temporary exacerbation" of that preexisting injury. The WCJ additionally found that "Worker reached [MMI]" for the right-hip-exacerbation injury "with no permanent impairment[,]" but provided no specific date of MMI for that injury. The WCJ separately found that "Worker reached [MMI] for all conditions no later than January 29, 2016." The WCJ also found that "[t]he opinion of Dr. Kiburz . . . is that Worker's current right hip complaints are not causally related to the . . . work accident[,]" an opinion that the WCJ "accepted." From the foregoing, the WCJ concluded that Worker "is not entitled to additional benefits for her right hip." Worker appealed.
{6} Neither party challenges the WCJ's determination of benefits with respect to Worker's back-related injury.1 Thus, the only issue we address in this appeal is whether the record supports the WCJ's findings and conclusions regarding the compensability of Worker's right hip injury.
{7} Worker argues that substantial evidence does not support the WCJ's findings that (1) Worker had a preexisting right hip injury, (2) the only injury to the right hip that Worker suffered was a temporary exacerbation of her preexisting injury,and (3) Worker had reached MMI for that injury. Worker, therefore, contends that the WCJ's conclusion that Worker is entitled to no additional benefits for her right hip injury cannot be sustained. We agree with Worker that the WCJ's ruling regarding Worker's right hip is, on the whole, unsupported, requiring reversal and remand.
{8} "We review workers' compensation orders using the whole record standard of review." Leonard v. Payday Prof'l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177. "In applying whole record review, this Court reviews both favorable and unfavorable evidence to determine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact[-]finder." Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, ¶ 15, 120 N.M. 734, 906 P.2d 266. While "this Court is not empowered to choose between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo," Trujillo v. Los Alamos Nat'l Lab., 2016-NMCA-041, ¶ 45, 368 P.3d 1259 (internal quotation marks and citation omitted), cert. denied, 2016-NMCERT-___, (No. S-1-SC-35805, Apr. 7, 2016), an administrative agency's findings "must . . . be set aside when the record before the reviewing court precludes the agency's decision from being justified by a fair estimate of the worth of the testimony of witnesses[.]" Tallman v. ABF(Arkansas Best Freight), 1988-NMCA-091, ¶ 16, 108 N.M. 124, 767 P.2d 363 (internal quotation marks and citation omitted). We will set aside a workers' compensation judge's findings of fact only if "they are shown to be clearly erroneous or not supported by requisite evidence." St. Clair v. Cty. of Grant, 1990-NMCA-087, ¶ 30, 110 N.M. 543, 797 P.2d 993.
{9} "The reviewing court starts out with the perception that all evidence, favorable and unfavorable, will be viewed in the light most favorable to the agency's decision." Tallman, 1988-NMCA-091, ¶ 18. "This would, however, not preclude the court from setting aside the agency decision when it cannot conscientiously say that the evidence supporting the decision is substantial, when viewed in the light that the whole record furnishes." Id. "To determine whether a finding of fact is amply supported by the whole record, we do not rely solely on one part of the evidence if to do so would be unreasonable." Herman v. Miners' Hosp., 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734. "We must find evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency." Id. (internal quotation marks and citation omitted). "Substantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency's decision." Begay v. Consumer Direct Pers. Care, 2015-NMCA-025, ¶ 6, 344 P.3d 1083 (alteration, internal quotation marks, and citation omitted).
{10} The WCJ found that "Worker suffered a pre[]existing right hip injury[,]" a finding that Worker challenges as unsupported by the evidence. As the record reflects, Worker testified at trial that she suffered a labral tear of her right hip in 2005 that was repaired through arthroscopy surgery. Worker's previous right hip surgery is documented throughout the record, including in the treatment notes of Dr. Lyman. In challenging the evidence supporting the finding of a preexisting right hip injury, Worker points to what she describes as "the uncontradicted evidence [showing] that [she] had no pain, problems, or limitations relative to her right hip in the days, months, and years prior to the April 17, 2015 work-related accident." It is true that Worker testified that following the 2005 surgery, she experienced no problems "with right hip pain at all" and that she was never placed on work restrictions as a result of her prior hip injury. But simply because Worker was not experiencing problems with, or pain in, her right hip and was under no work restrictions following her successful surgery in 2005 does not render the WCJ's finding of a preexisting right hip injury unsubstantiated. The WCJ's finding that Worker had a preexisting injury to her right hip is supported by substantial evidence. That finding, however, addresses but a threshold issue related to the WCJ's separate finding that Worker suffered only a temporary exacerbation of thatpreexisting injury. Whether that finding is supported by the record is a separate matter entirely, to which we next turn.
{11} While Dr. Knaus, who had treated Worker in 2012 for back-related problems, described the injury to Worker's back as an "exacerbation" of a preexisting condition, none of Worker's health care providers stated or were asked whether Worker's post-accident right hip complaints arose from a "temporary exacerbation" of a preexisting condition. Rather, each diagnosed her with various new injuries: Dr. Lyman, a "contusion of the right hip . . . indicative of a trauma"; and Drs. Knaus and Kiburz, a right hip labral tear. Indeed, Dr. Knaus...
To continue reading
Request your trial