Bowles v. Los Lunas Schools

• Decision Date: 26 September 1989
• Docket Number: No. 10813,10813
• Citation: 781 P.2d 1178,109 N.M. 100,1989 NMCA 81
• Parties: , 56 Ed. Law Rep. 1301 Trinity BOWLES, Claimant-Appellant, v. LOS LUNAS SCHOOLS, and New Mexico Public School Insurance Authority, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 1178

781 P.2d 1178

109 N.M. 100, 56 Ed. Law Rep. 1301

Trinity BOWLES, Claimant-Appellant, v. LOS LUNAS SCHOOLS, and New Mexico Public School Insurance Authority, Respondents-Appellees.

No. 10813.

Court of Appeals of New Mexico.

Sept. 26, 1989.

Certiorari Denied Oct. 27, 1989.

[109 N.M. 101] Lorenzo A. Chavez, Martin J. Chavez, Chavez Law Offices, Albuquerque, for claimant-appellant.

Carlos G. Martinez, Butt, Thornton and Baehr, P.C., Albuquerque, for respondents-appellees.

OPINION

MINZNER, Judge.

Claimant raises three issues on appeal from a compensation order of the Workers' Compensation Division. The date of the accident was January 23, 1987. Therefore, these issues arise in part under prior law. See NMSA 1978, Secs. 52-1-1 to 52-1-69 (Orig.Pamp. & Cum.Supp.1986) (the Interim Act); see also NMSA 1978, Sec. 52-4-1 (Repl.Pamp.1987). First, she contends the hearing officer erred in determining her to be partially rather than totally disabled. Second, she contends the hearing officer erred in failing to find a safety device violation. Third, she contends the hearing officer erred in not ordering employer to pay the bills of Dr. Sanchez, a family practitioner; Dr. Hinkeldey, a chiropractor; and Dr. DeBlassie, a psychologist. We affirm.

BACKGROUND.

On January 23, 1987, claimant was working as a school teacher for the Los Lunas public schools in a portable classroom building. The entrance to the classroom is two to three feet off the ground. There is a platform in front of the doorway, with some stairs and a ramp leading from the ground to the platform. The platform had a handrail; the stairs did not, although both the platform and the stairs at other portable classrooms had handrails. Claimant was pushed and fell off the platform to the ground. As a result of the fall, she broke one of the bones in her right foot, sustained a concussion, and strained her neck and back.

Shortly after the injury, claimant was seen by Dr. Ramaswamy, who operated on her right foot. In late April or early May 1987, claimant's care was transferred from Dr. Ramaswamy to Dr. Boyd, who provided follow-up care for the injury to her foot and also prescribed treatment, primarily physical therapy and medication, for claimant's complaints concerning her neck and cervical spine. In August 1987, Dr. Boyd became concerned that some of claimant's difficulties were a result of a psychological condition and recommended claimant be seen by a psychologist. Claimant saw Dr. Yeo, a neuropsychologist, who evaluated claimant to determine whether some of her difficulties were caused by the residual effects of the head injury. Employer paid the bills of these three doctors.

At the hearing before the hearing officer, both parties requested a finding that claimant had reached maximum medical improvement on August 1, 1987. Thus, the primary dispute between the parties was whether and to what extent claimant was disabled on and after that date. Claimant argued that she had suffered a psychological impairment as a result of a physical impairment and that in combination these injuries rendered her totally and permanently unable to earn a comparable wage. See Sec. 52-1-25. The hearing officer found that claimant had suffered a permanent physical impairment, that she had reached maximum medical improvement, and that her psychological condition did not increase her disability.

At the hearing, claimant also argued that the employer should be required to pay the medical bills of Drs. Sanchez, Hinkeldey, and DeBlassie. Dr. DeBlassie is a psychologist who testified for claimant at the hearing. He performed the same type of evaluation as Dr. Yeo and came to similar, although not identical, conclusions. Dr. Hinkeldey is a chiropractor. Claimant sought treatment from him while she was still under the care of Dr. Boyd. Employer's insurance carrier notified both claimant and Dr. Hinkeldey that it would not authorize treatment by Dr. Hinkeldey. Dr. Hinkeldey never actually treated claimant; instead, he recommended a course of treatment that was never started. In August 1987, while still under the care of Dr. Boyd, claimant saw Dr. Sanchez, a family practitioner, for the problems with her neck and cervical spine. Dr. Sanchez prescribed muscle relaxants and referred claimant to a specialist.

The hearing officer found that the employer provided adequate medical services and that the services provided by the other doctors were not reasonable. He also rejected a requested finding that Dr. Boyd's services were unsatisfactory.

EXTENT OF DISABILITY.

Under Sections 52-1-24 and 52-1-25 of the Interim Act, disability is defined in terms of "permanent physical impairment." Under Section 52-1-24, compensation for "permanent total disability" requires evidence of a permanent physical impairment, as a result of which the worker is wholly unable to earn comparable wages or salary. Under Section 52-1-25, compensation for partial disability requires evidence of a permanent physical impairment, as a result of which the worker has an anatomic or functional abnormality existing after the date of maximum medical improvement. By express statutory provision, an anatomic or functional abnormality must be based on "a medically or scientifically demonstrable finding as presented in the American medical association's guides to the evaluation of permanent impairment." Sec. 52-1-25.

The threshold question under either section is whether the worker suffered a "permanent physical impairment." Here, the hearing officer found that claimant suffered a 25% permanent partial disability. That finding has not been challenged. He also found that there has been "no increase in the impairment rating or partial disability rating as a result of the Claimant's treatable psychological condition."

The last sentence of Section 52-1-24 provides that " '[p]hysical impairment' does not include impairment of function due solely to psychological or emotional conditions, including mental stress." On appeal claimant makes a persuasive argument that the last sentence of Section 52-1-24 does not exclude physical impairment based on psychological injury that arises out of a physical injury. We assume, but need not decide, that she is correct. In this case, however, the hearing officer's finding can be read to mean that the psychological injury at issue was not permanent.

Findings of fact are to be liberally construed in support of the judgment. H.T. Coker Constr. Co. v. Whitfield Transp., Inc., 85 N.M. 802, 518 P.2d 782 (Ct.App.1974). The findings are sufficient if a fair construction of all of them, taken together, supports the trial court's judgment. Id. Construed liberally, the findings support a conclusion that the hearing officer found the psychological condition was temporary rather than permanent. If there is substantial evidence to support the finding that claimant's condition was not permanent, Section 52-1-24 is not applicable.

Dr. Yeo gave claimant a battery of psychological tests. Based on those tests, Dr. Yeo described her as having difficulties in some areas of cognitive function, particularly in the areas of attention and concentration, speed of responses, and the organization of problem-solving efforts. He characterized these as "mild but definite." In addition, based on the tests, Dr. Yeo believed claimant had a tendency to somatic complaints under stress.

In Dr. Yeo's opinion, it was more probable than not that claimant's cognitive difficulties were not the result of the concussion but, rather, were secondary to the stress. While Dr. Yeo could not rule out brain damage entirely, it was more probable than not that there was no organic brain damage. Claimant's difficulties met the diagnostic criteria for post-traumatic stress disorder, which is usually temporary. She needs psychotherapy. The problems claimant was experiencing were precipitated by the accident and they would be impediments to her efficient functioning as a school teacher.

Dr. DeBlassie's testimony was similar. Dr. DeBlassie also gave claimant psychological tests. Dr. DeBlassie was of the opinion that at that point she had no organic brain damage. She has extreme reactions to physical difficulties and a tendency to hypochondria. Dr. DeBlassie diagnosed her as suffering from an adjustment disorder with depressed moods. This was probably a temporary situation, although it could be exacerbated by the lack of treatment. She needed psychological treatment and her psychological condition was sufficiently disabling that she could not return to work as a school teacher. In Dr. DeBlassie's opinion, to a reasonable medical probability, claimant's psychological problems were caused by the accident and injury.

The hearing officer found that "[t]he psychological condition of the Claimant arising out of the injury sustained has not resulted in total permanent disability because Claimant can return and has been asked to return to work by the employer." Claimant challenges the portion of the finding concerning her ability to return to work as not based upon substantial evidence because both psychologists, Dr. Yeo and Dr. DeBlassie, testified she was suffering from a psychological condition that totally prevented her from working.

However, under the circumstances of this case, we do not need to reach this issue. The issue of whether or not claimant is able to earn comparable wages would arise only if the hearing officer had found she suffered from a permanent physical impairment. See Sec. 52-1-24(A). The hearing officer in this case found a partial disability. The definition of partial disability does not turn on whether or not claimant is able to earn comparable wages; rather, it is concerned solely with whether she suffers from a permanent physical impairment within the meaning of the statute. See Sec. 52-1-25.

In this case, the hearing officer decided the physical disability was permanent but partial and the psychological...