Grine v. Peabody Natural Resources

• Decision Date: 28 June 2006
• Docket Number: No. 29,196.,29,196.
• Citation: 139 P.3d 190,2006 NMSC 031
• Parties: Margie GRINE, on behalf of and as surviving spouse of Gary C. Grine, deceased, Claimant-Petitioner, v. PEABODY NATURAL RESOURCES d/b/a Lee Ranch Coal Company and Old Republic Insurance Company, Employer-Insurer-Respondents.
• Court: New Mexico Supreme Court

139 P.3d 190

2006 NMSC 031

Margie GRINE, on behalf of and as surviving spouse of Gary C. Grine, deceased, Claimant-Petitioner, v. PEABODY NATURAL RESOURCES d/b/a Lee Ranch Coal Company and Old Republic Insurance Company, Employer-Insurer-Respondents.

No. 29,196.

Supreme Court of New Mexico.

June 28, 2006.

COPYRIGHT MATERIAL OMITTED

Gerald A. Hanrahan, Albuquerque, NM, for Petitioner.

French & Associates, P.C., Katherine E. Tourek, Albuquerque, NM, for Respondents.

OPINION

MINZNER, Justice.

{1} Margie Grine (Claimant), on behalf of and as surviving spouse of Gary Grine (Worker), deceased, appeals from the Court of Appeals' opinion, which affirmed the Workers' Compensation Judge's (WCJ) dismissal of Worker's claim for workers' compensation benefits. Worker sought benefits from his employer, Peabody Natural Resources, d.b.a. Lee Ranch Coal Company, and its insurer, Old Republic Insurance Company (Employer/Insurer), after he suffered a heart attack during his graveyard shift in October 2000. After Worker's death in June 2002, his wife, Margie, was substituted as the claimant to continue his claims and to independently assert her claims to death benefits.

{2} The WCJ concluded that Worker's on-the-job heart attack did not arise out of or occur in the course and scope of Worker's employment, and therefore, dismissed Worker's claim. Claimant appealed to the Court of Appeals, which held that there was sufficient evidence to support the WCJ's determination that, as a matter of reasonable medical probability, there was no causal link between Worker's on-the-job heart attack and his employment. Grine v. Peabody Natural Res., 2005-NMCA-075, ¶¶ 1, 29, 137 N.M. 649, 114 P.3d 329. The Court of Appeals also determined that Employer/Insurer had statutory authority to select a health care provider (HCP) for Worker, despite the fact that they had denied his claim. Id. ¶ 1. Claimant petitioned this Court for a writ of certiorari pursuant to Rule 12-502 NMRA 2006, and we granted certiorari pursuant to NMSA 1978, Section 34-5-14(B)(4) (1972).

{3} We agree with the Court of Appeals that an employer has the right to select a treating HCP for a worker even when the employer denies a worker's claim for benefits. In this case, however, Employer/Insurer did not select a HCP for Worker in compliance with the procedure set forth in NMSA 1978, Section 52-1-49 (1990). The HCP selected by Employer/Insurer was not a treating HCP and his testimony was inadmissible. Therefore, there was insufficient evidence to support the WCJ's determination that Worker failed to prove causation as required by NMSA 1978, Section 52-1-28(B) (1987). The Court of Appeals is reversed on this issue. However, this matter is remanded to the WCJ for a determination as to whether Employer had "actual knowledge of the occurrence" so as to satisfy the notice requirements of NMSA 1978, Section 52-1-29 (1990).

I. BACKGROUND

{4} Worker, a resident of Grants, New Mexico, was employed by Employer from 1985 to the date of his heart attack, October 2, 2000. Employer's coal mine is located in a remote area approximately 41 miles west of Grants. At the time of his heart attack, Worker had been working as a blade operator at the mine for approximately 10-11 years. Worker's primary job was to steer and operate a blade, which is a heavy equipment vehicle weighing several tons. Worker was required to level the dirt roads, cut ditches, and blade drill patterns. Worker also helped with other jobs when necessary. For example, there were times he helped with a "shovel move," which meant he physically got out of his blade and helped his co-workers on the ground untangle, move, and lift heavy cable. According to Worker, a shovel move could take anywhere from "three to eight hours, and sometimes more depending on where it went, and it took a lot of strength and endurance to run that much." Occasionally when the mine was short-handed, Worker would also get on the scraper or dozer.

{5} During his 10-11 years as a blade operator, Worker testified that he believed his job changed for the worse because "more was expected as the mine grew." As a result of the growth, there was more work to do; yet, the six-miles-per-hour speed of the blade remained the same. Sometimes it took longer to get to the location where the work was assigned than to actually do the work. Worker noticed differences in the last year or two, prior to his heart attack, because "there [were] more demands on . . . heavy equipment operators." Worker felt as though more was demanded from him because there were more projects, and even though there were two blade operators per shift, Worker believed the other blade operator was not doing his share of the duties required. Worker informed his supervisor that he had to do his own work, as well as some of the other blade operator's work, and it came to a point that Worker discussed this issue with his supervisor once or twice a week.

{6} Worker's regular work schedule required him to work twelve-hour days for four consecutive days. He had rotating shifts, which meant that he worked from 7:00 a.m. to 7:00 p.m. for two weeks, and then 7:00 p.m. to 7:00 a.m. for the subsequent two weeks. Because the mine was located in a remote area, Worker's commute to and from work required an additional two and a half hours each day. In addition to his regular work schedule, Worker was required to work overtime, sometimes without much notice. In fact, Worker had worked 53 overtime hours in September 2000. Although there were no written company policies prohibiting breaks or lunch breaks, Worker stated that he rarely took breaks because if he stopped his blade a supervisor would question the stop, which embarrassed Worker. Worker also testified that he rarely took a lunch break, and often chose to eat his lunch while working, because certain projects had to be done and he was more concerned about getting his job done. Worker testified that blade operators ate lunch inside their blades because "for our safety and the safety of anyone there that was working around the shovels, it was better to use the blade around the shovel during the lunch break and without the worry of one of those big trucks trying to run over you."

{7} Despite Worker's long commute, work days, rotating schedule, and mandatory overtime, Worker felt compelled to continue working for Employer because there were "no paying jobs" in the area, and he did not want to apply for unemployment or related benefits. Even though Worker had the same schedule for many years, he testified that he felt as though his "body was always confused."

{8} In July 2000, Worker's immediate supervisor, Ernest Ortiz, informed Worker that he had four vacation days that he needed to use, so Worker filled out the paperwork and took a week off. When he returned from his vacation, Worker was told that the new production manager, Carl McMinn, wanted to talk to him. McMinn believed that Worker took one more day of vacation than he was entitled to take, so McMinn swore at Worker and accused him of stealing twelve hours of company time. Worker was upset about this confrontation and accusation, and he continued to brood over the incident until his heart attack.

{9} Worker testified that approximately a month before his heart attack, he started to notice some symptoms — more than usual heartburn, fatigue, and dizzy spells; however, after the incident with McMinn, he lived in fear of being fired for taking sick leave, so he did not make an appointment to see a doctor. Worker's regular work schedule only consisted of four work days each week, but he was putting in a lot of mandatory overtime, often without much notice, so it was difficult to schedule a doctor's appointment. Worker also did not think it was worth going to the doctor because if something was wrong with him, then the doctor would have advised him to stay home for a few days, and Worker did not want to miss work.

{10} During Worker's graveyard shift, on October 1-2, 2000, Worker complained of heartburn and stomach problems to some co-workers. Around midnight, Worker radioed Ortiz, his supervisor, for assistance. Ortiz did not respond, so Worker called again. Still no assistance was given. At approximately 1:30 a.m., Worker drove his blade to the change house and spoke directly to Ortiz, who was doing paperwork and in a bad mood. Worker informed Ortiz that he was not feeling well. Not wanting to be bothered, Ortiz told Worker to go home and failed to provide Worker with any medical treatment, even though Ortiz was a member of the emergency response team.

{11} Although Worker was not aware of it at the time, he was suffering from a heart attack. Worker drove himself home, went to sleep, and later that day saw Dr. Cubine. Dr. Cubine believed that Worker was having stomach problems and ordered an upper GI to be performed in ten days. In the meantime, she gave him some medicine to drink. Worker continued to feel sick, and went to the emergency room on the evening of October 3, 2000, where it was determined that Worker had suffered a heart attack. Worker was airlifted to the Heart Hospital of New Mexico in Albuquerque. He was treated for coronary artery disease and given an angioplasty the following morning.

{12} Worker also sought treatment from the New Mexico Heart Institute and Dr. Orchard, a general cardiologist. Dr. Orchard continued to treat Worker until the time of his death. Worker died on June 21, 2002. His death was the natural and direct result of the heart attack that he suffered on October 2, 2000.

{13} Worker filled out a written notice of accident report on April 17, 2001, and Employer/Insurer denied benefits on June 13, 2001. Worker then filed his complaint with the WCJ on July 16, 2001. Prior to a trial on the merits, Employer/Insurer filed a motion in limine to exclude all of the medical records of the Heart Hospital of New Mexico, the New Mexico Heart Institute, and Dr....