Gallegos v. City of Albuquerque

• Decision Date: 07 April 1993
• Docket Number: No. 13730,13730
• Citation: 853 P.2d 163,115 N.M. 461,1993 NMCA 50
• Parties: Ida GALLEGOS, Claimant-Appellant, v. CITY OF ALBUQUERQUE, a self-insured employer, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 163

853 P.2d 163

115 N.M. 461

Ida GALLEGOS, Claimant-Appellant, v. CITY OF ALBUQUERQUE, a self-insured employer, Respondent-Appellee.

No. 13730.

Court of Appeals of New Mexico.

April 7, 1993.

Certiorari Denied May 20, 1993.

[115 N.M. 462] David A. Archuleta, Albuquerque, for claimant-appellant.

Richard J. Shane, Deborah S. Dungan, Padilla, Riley & Shane, P.A., Albuquerque, for respondent-appellee.

OPINION

HARTZ, Judge.

Ida Gallegos (Worker) appeals from a disposition order of the workers' compensation administration (the Administration) which ruled that as of March 26, 1990, she had no residual disability from a January 30, 1989, accident she suffered while working for the City of Albuquerque (the City). We affirm because the workers' compensation judge (the WCJ) could rationally have determined that Worker had failed to meet her burden of establishing disability after March 25, 1990.

The record in this case is quite lengthy and involved. With the assistance of able briefs and oral argument by both parties we have thoroughly reviewed the evidence. We will not repeat the evidence in detail. We recite only those facts necessary to an understanding of this opinion.

Worker was injured by a fall in a City storeroom on January 30, 1989. At the time, she held the number two administrative position in the City's Weed and Litter Division. A doctor at the City's Employee Health Center released her to work without restrictions two weeks later. During the next year Worker worked episodically, sometimes with restrictions. She complained of various ailments, including headaches and pain in her neck, shoulder, lower back, and right leg. Twice she fell at her home, each time injuring a finger. Worker's treating physicians originally believed that the first fall was caused by her back injury of January 30, 1989. On February 21, 1990, Dr. Barry Diskant, medical director of the City's Employee Health Center, placed Worker on leave. She was complaining of pain and he thought that she could not continue working in a job which required "a lot of driving." At the hearing before the WCJ both parties presented evidence concerning the City's offer to Worker of another position and her response to the offer. She did not work for the City after February 21, 1990. Dr. Diskant testified that Worker reached maximum medical improvement on March 26, 1990.

While Worker was not working, the City paid her benefits for temporary total disability. The City also paid for treatment and consultation by a number of physicians. In August 1990 a neurologist to whom Worker had been referred made a preliminary diagnosis of multiple sclerosis, based on an MRI of her brain. On November 21, 1990, the City filed with the Administration a Petition to Reduce Benefits, seeking a termination or reduction of temporary total disability benefits. The City continued to pay Worker full benefits for temporary total disability until the Administration filed a Recommended Resolution on January 15, 1991, recommending that Worker's benefits be reduced to thirty percent permanent partial disability. The City made the recommended partial disability payments up to the time of the hearing before the WCJ.

We now discuss the allocation of the burden of persuasion, whether the WCJ's ruling is affirmable, and whether we can consider evidence in the supplemental record on appeal.

I. BURDEN OF PERSUASION

The City filed its petition pursuant to NMSA 1978, Section 52-5-5(A) (Repl.Pamp.1991), which permits "any party" to file a claim with the director of the Administration when a dispute arises under the Workers' Compensation Act (the Act). The Administration then attempts to resolve the dispute informally and issues a recommendation for resolution within sixty days after receipt of the claim. Section 52-5-5(C). If either party timely rejects the recommendation, the matter is assigned to a WCJ for hearing. Id. The first issue before us is whether the City bore the burden of persuading the WCJ that Worker's benefits should be terminated or reduced. We hold that the City did not bear that burden. The burden was on Worker to establish entitlement to benefits.

The legislature introduced the procedure provided by Section 52-5-5 in 1986, when it created the Administration and removed workers' compensation cases from the district courts. Under former law the only way to initiate a judicial determination of a worker's entitlement to benefits was for the worker to file a claim after the employer failed or refused to pay compensation. See NMSA 1978, Secs. 52-1-26, -31(A) (Orig.Pamp.). Once the district court had entered a judgment awarding benefits, either party could apply for a change in benefits. NMSA 1978, Sec. 52-1-56(A) (Orig.Pamp.). In the initial judicial proceeding the worker had the burden of persuasion with respect to entitlement to benefits. See Aguilar v. Penasco Indep. Sch. Dist. No. 6, 100 N.M. 625, 628, 674 P.2d 515, 518 (1984). After the initial judgment the party seeking a change in benefits had the burden of persuasion with respect to the change. See Amos v. Gilbert W. Corp., 103 N.M. 631, 635-36, 711 P.2d 908, 912-13 (Ct.App.1985). Thus, an employer seeking reduction in benefits had the burden to establish that there had been a decrease in disability, whereas a worker seeking an increase in benefits had the burden of establishing an increase in disability. See id. These rules accord with the law in other jurisdictions. See 3 Arthur Larson, The Law of Workmen's Compensation Sec. 80.33(a) (1989) (worker has burden of proving the claim), Sec. 81.33(c) (burden is on movant who seeks to open the award).

Prior to filing its petition the City had been paying Worker full benefits for temporary total disability. Although New Mexico has adopted what is apparently the minority rule that permits voluntary payment of benefits by the employer to be treated as competent evidence of liability, see Romero v. S.S. Kresge Co., 95 N.M. 484, 486, 623 P.2d 998, 1000 (Ct.App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981), overrruled on other grounds by Dupper v. Liberty Mutual Ins. Co., 105 N.M. 503, 734 P.2d 743 (1987); 2B Larson, supra, Sec. 79.43, New Mexico has rejected the contention that voluntary payment by the employer shifts the burden of persuasion from the worker to the employer. See Romero, 95 N.M. at 486, 623 P.2d at 1000. In holding that the voluntary payment of compensation benefits does not create a presumption that the employer is liable, our Supreme Court wrote, "To impose the presumption would not only be contrary to the remedial nature of workmen's compensation but would also discourage prompt payment of benefits which might be essential for the worker's survival." Wilson v. Richardson Ford Sales, 97 N.M. 226, 228, 638 P.2d 1071, 1073 (1981); accord 2B Larson, supra, Sec. 79.43, at 15-426.112. In other words, it is against public policy to penalize an employer by shifting the burden of persuasion when the employer voluntarily takes action that benefits the worker.

The identical public policy considerations argue against shifting the burden of persuasion to the City in the circumstances of this case. Under settled law, Worker would have the burden of persuasion if she were the one to file a petition with the Administration. See Toynbee v. Mimbres Memorial Nursing Home, 114 N.M. 23, 27, 833 P.2d 1204, 1208 (Ct.App.1992); Sanchez v. Molycorp, Inc., 113 N.M. 375, 378, 826 P.2d 971, 974 (Ct.App.1992). Worker could not file a claim for disability benefits, however, so long as the City was paying full benefits. See NMSA 1978, Sec. 52-5-18 (Repl.Pamp.1987); Armijo v. Co-Con Constr. Co., 92 N.M. 295, 296, 587 P.2d 442, 443 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978), overruled on other grounds by Raines v. W.A. Klinger & Sons, 107 N.M. 668, 763 P.2d 684 (1988), and by Maitlen v. Getty Oil Co., 105 N.M. 370, 733 P.2d 1 (Ct.App.1987). Thus, to induce Worker to file a claim the City would need to reduce the benefits it was paying. Although statutory sanctions against bad faith misconduct by an employer should discourage an employer from reducing payments unjustifiably, NMSA 1978, Sec. 52-1-54(G) (Repl.Pamp.1987), the record in this case would certainly have supported a finding of good faith if the City had reduced Worker's benefits on its own instead of first filing its petition with the Administration. By proceeding in that manner the City would have ensured that Worker bore the burden of persuasion. To impose the burden of persuasion on the City because it chose a procedure more beneficial to Worker would deter other employers from taking the same path. The public policy expressed in Wilson suggests that the law should not be interpreted to discourage employers from (1) paying full benefits and filing a petition under Section 52-5-5, rather than (2) reducing benefits to induce the worker to file a petition. The burden of persuasion therefore should not shift to an employer who chooses the first course.

Nothing in the changes to the Act since Wilson suggests legislative repudiation of the public policy expressed in that opinion. In 1987 the legislature added a declaration of purpose to the Act. The declaration includes the following:

It is the intent of the legislature in creating the worker's compensation division¹ that the laws administered by it to provide a workers' benefit system be interpreted to assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to the provisions of the Workers' Compensation Act and the New Mexico Occupational Disease Disablement Law. It is the specific intent of the legislature that benefit claims cases be decided on their merits and that the common law rule of "liberal construction" based on the supposed "remedial" basis of workers' benefits legislation shall not apply in these cases. The workers' benefit...