Dewitt v. Rent-a-Center, Inc.

• Decision Date: 17 June 2009
• Docket Number: No. 30,640.,30,640.
• Parties: Leslie A. DEWITT, Worker-Petitioner, v. RENT-A-CENTER, INC. and Fidelity & Guaranty Insurance, Employer-Insurer-Respondents.
• Court: New Mexico Supreme Court

212 P.3d 341

2009 NMSC 032

Leslie A. DEWITT, Worker-Petitioner, v. RENT-A-CENTER, INC. and Fidelity & Guaranty Insurance, Employer-Insurer-Respondents.

No. 30,640.

Supreme Court of New Mexico.

June 17, 2009.

Gerald A. Hanrahan Albuquerque, NM, for Petitioner.

Hatch, Allen & Shepherd, P.A., Aaron Randall Kugler, Albuquerque, NM, for Respondents.

OPINION

DANIELS, Justice.

{1} Worker, Leslie DeWitt, was injured during the course of her employment with Employer, Rent-A-Center, Inc. She has appealed the decision of the Workers' Compensation Judge (WCJ) denying her claim for disability benefits. We hold that the WCJ erred in refusing to admit testimony of Worker's medical experts concerning observations made and treatment rendered before the experts were duly designated as her authorized health care providers (HCPs). We therefore remand to the WCJ to allow the omitted testimony to be considered.

I. BACKGROUND

{2} After a motor vehicle accident in 1997 when she was seventeen years old, Worker was diagnosed with grade III spondylolisthesis, a condition in which one vertebra in the spine slips forward on the vertebra below it and comes out of alignment with the other spinal vertebrae. During the years between her 1997 diagnosis and February 25, 2004, Worker had seen at least four different doctors for recurring back pain, in addition to experiencing an assortment of other health issues and surgeries. She was hired by Employer to work as a sales manager in December 2003. On February 25, 2004, Worker was injured during the course of her employment when she reached out to keep a table from falling and experienced back pain.

{3} After the February 2004 accident, Worker reported her injury and received treatment from Employer's preferred HCP, Concentra. On March 17, 2004, Worker was released by Concentra to regular duty with no restrictions, after reporting to the doctor that she did not have pain and that her symptoms had resolved. In July 2004, Worker sought emergency medical treatment, complaining of nausea and severe low back pain. Shortly afterward, she asked Employer for authorization for more medical care. Although Employer's insurer told Employer to send her back to Concentra, that message apparently was not conveyed to Worker by Employer. Worker testified that her supervisor told her to call Employer's Risk Management Office through a 1-800 number on a poster on the wall, but the person answering the phone advised her that her case was closed. Worker then gave notice of her resignation.

{4} Over the next several months, Worker sought treatment on her own from several medical providers, including three doctors and a hospital emergency room. In December 2004, Worker consulted Dr. Whalen, at the suggestion of her mother. Dr. Whalen gave Worker some injections and referred her to Dr. Gelinas for a surgical consultation. In January 2005, Dr. Gelinas performed an "L4-S1 fusion reduction of spondylolisthesis" on Worker. After the surgery, Worker continued to seek treatment from Drs. Whalen and Gelinas, sought emergency room treatment on more than one occasion, and continued to receive injections from Dr. Whalen. The last radiographs from Dr. Gelinas on March 20, 2005, showed that her spondylolisthesis had been surgically reduced and was stable, the bone mass was excellent with no evidence of nonunion, the hardware had not failed, and she had a functionally solid fusion. During her consultations with and treatment by Drs. Whalen and Gelinas, she had not told them that she thought her work-related accident in February 2004 was the cause of any of her continuing problems, although she had mentioned the accident as part of her historical "string of problems, starting with the motor vehicle accident in her teens and her diagnosis then." Because Worker did not inform either Dr. Whalen or Dr. Gelinas that she believed her need for treatment was associated with a work-related injury, neither doctor set up her chart as a workers' compensation case nor billed Employer's insurer for their services.

{5} In July 2005, seven months after her surgery, Worker filed a workers' compensation complaint against Employer to seek temporary total and permanent partial disability benefits, medical benefits and attorney fees. In her complaint, she also gave notice to Employer that she was exercising her right under the Workers' Compensation Act (the Act), NMSA 1978, Section 52-1-49(C) (1990), to designate her own choice of HCP in place of the employer-designated HCP, Concentra, naming Drs. Whalen and Gelinas. Employer did not give notice of any objection to the change, and the WCJ found that Drs. Whalen and Gelinas became Worker's authorized HCPs as of July 18, 2005, three days after giving notice to Employer, in accordance with the requirements of Section 52-1-49(D). Those two doctors continued to treat Worker for her injuries for some time after they became Worker's authorized HCPs. Dr. Gelinas continued to treat Worker through August 2005 and Dr. Whalen continued treatment through January 2006.

{6} Before trial, Dr. Diskant was chosen by the parties to conduct an independent medical evaluation (IME) of Worker. After reviewing all of Worker's medical records, radiographs, and performing a physical examination, Dr. Diskant concluded that her need for surgery, while reasonable and necessary for her condition, "was not caused by her accident of February 25, 2004, while working for Employer."

{7} At the October 2006 trial before the WCJ, the testimony of the medical experts was presented, as required by the New Mexico Administrative Code, through their pretrial depositions. See 11.4.4.12(G)(4) NMAC (6/13/03) (providing deposition testimony of authorized HCPs shall be admissible, in lieu of live testimony); 11.4.4.12(F)(1) (stating "[l]ive medical testimony shall not be permitted, except by court order"); see also Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 28, 134 N.M. 421, 77 P.3d 1014 (confirming that the NMAC requires use of depositions in lieu of live testimony).

{8} Worker offered into evidence the depositions of Drs. Whalen and Gelinas containing their testimony about their diagnoses and treatments of Worker, and their expert opinions that her medical condition had changed as a result of her February 2004 work-related injury. The WCJ excluded Worker's HCP testimony on the legal theory that the opinions were inadmissible because they were based on treatment rendered by those doctors before July 18, 2005, the date when they became Worker's authorized HCPs. The WCJ relied on a combination of two provisions of the Act, Section 52-1-49(C), which provides that a worker must give notice of a proposed new HCP "at least ten days before treatment from that health care provider begins," and NMSA 1978, Section 52-1-51(C) (1990, as amended through 2005), which provides that "[o]nly a health care provider who has treated the worker pursuant to Section 52-1-49 NMSA 1978 or the health care provider providing the independent medical examination pursuant to this section may offer testimony at any workers' compensation hearing concerning the particular injury in question."

{9} The WCJ also rejected Worker's arguments that she was effectively abandoned by Employer's HCP with respect to her continuing health care and that she was therefore entitled to choose her own health care provider without notification to Employer.

{10} The WCJ relied substantially on the deposition testimony of Dr. Diskant to find that Worker's condition after March 17, 2004, "was not caused by or necessitated by her accident and temporary injury of February 25, 2004." The WCJ therefore concluded that Worker was not entitled to disability benefits or attorney's fees and that Employer and its insurer were not responsible for payment of any medical bills after March 17, 2004, when her condition was found to be "resolved to her pre-accident condition of chronicity."

{11} The Court of Appeals, in a memorandum opinion, affirmed the decision of the WCJ in its entirety. DeWitt v. Rent-A-Center, Inc., No. 27,596, slip op. (N.M.Ct. App. Aug. 21, 2007). The case comes before us on Worker's petition for writ of certiorari.

II. STANDARD OF REVIEW

A. Review of WCJ's Factual Determinations

{12} We review factual findings of Workers' Compensation Administration judges under a whole record standard of review. Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926. "On appeal, to determine whether a challenged finding is supported by substantial evidence, we have always given deference to the fact finder, even when we apply, as here, whole record review." Herman v. Miners' Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991). We view the evidence in the light most favorable to the decision, "but may not view favorable evidence with total disregard to contravening evidence." Id. (internal quotation marks and). Substantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency's decision, id., and we neither reweigh the evidence nor replace the fact finder's conclusions with our own. Id. at 553, 807 P.2d at 737; see Register v. Roberson Const. Co Inc., 106 N.M. 243, 245, 741 P.2d 1364, 1367 (1987) ("Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.").

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. 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.

Herman, 111 N.M. at 552, 807 P.2d at 736 (internal quotation marks and citation omitted).

B. Review of WCJ's Evidentiary Rulings

{13} With respect to the admission or exclusion of evidence, we generally apply an abuse of discretion standard where the...