Herman v. Miners' Hosp.

• Decision Date: 28 February 1991
• Docket Number: No. 19488,19488
• Citation: 807 P.2d 734,111 N.M. 550,1991 NMSC 21
• Parties: Don E. HERMAN, Surviving Spouse of Patricia D. Herman, Deceased, Petitioner, v. MINERS' HOSPITAL, Respondent.
• Court: New Mexico Supreme Court

Page 734

807 P.2d 734

111 N.M. 550

Don E. HERMAN, Surviving Spouse of Patricia D. Herman Deceased, Petitioner, v. MINERS' HOSPITAL, Respondent.

No. 19488.

Supreme Court of New Mexico.

Feb. 28, 1991.

[111 NM 551] Kastler and Kamm, Terrence R. Kamm, Raton, for petitioner.

Montgomery & Andrews, P.A., Katherine W. Hall, Santa Fe, for respondent.

OPINION

BACA, Justice.

This appeal is before us on writ of certiorari to the court of appeals. Petitioner Don Herman seeks to appeal the judgment of the court of appeals, which reversed an award of death benefits made by a hearing examiner of the Workers' Compensation Division. We have granted the petition, and we reverse the judgment of the court of appeals, reinstating the award of benefits.

Respondent Miners' Hospital (Hospital) employed Herman's spouse, the decedent, as a nurse. On July 21, 1986, decedent died as a result of a heart attack suffered at work. She had been treated at the Hospital for the heart attack immediately prior to her death, and she died at the Hospital. Decedent's heart attack occurred during a period when she suffered from substantial stress related to her employment. Following her death, the Hospital, as employer, did not file a first report of accident, and petitioner filed a claim for death benefits on July 20, 1988, almost two years after the death.

The Workers' Compensation hearing examiner determined that decedent died in an accident arising out of and in the course of her employment and that her death was causally connected to employment-related stress. The examiner also concluded that the Hospital had actual notice of the accident and that the Hospital's failure to file a first report of accident tolled the statute of limitations. See NMSA 1978, Secs. 52-1-58 & -59. Accordingly, Herman was awarded benefits as surviving spouse.

The court of appeals reversed in a memorandum opinion, holding that the claim was barred by the notice requirements of the Workers' Compensation Act, NMSA 1978, Section 52-1-29, and that the claim was barred by the statute of limitations contained in Section 52-1-31(B). We consider those two issues: whether the claim was barred by the notice requirements, and whether it was barred by the statute of limitations, as well as a third issue raised before the court of appeals but not discussed: whether the finding of causation was supported by substantial evidence.¹

I. IS THE HEARING EXAMINER'S FINDING THAT DECEDENT'S HEART ATTACK WAS CAUSALLY RELATED TO ON-THE-JOB STRESS SUPPORTED BY SUBSTANTIAL EVIDENCE?

The essence of the Hospital's claim is that Herman failed to carry his burden to show that the heart attack resulted from decedent's employment, and thus there was not substantial evidence supporting the hearing examiner's finding of causation. It argues that under whole record review the finding must be reversed because the totality of the evidence indicates that the finding was not reasonable.

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. See Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd., 101 N.M. 291, 681 P.2d 717 (1984); Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). When applying whole record review, the reviewing court "views the evidence in the light most favorable to the agency decision, but may not view favorable evidence with total disregard to contravening evidence." National Council on Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988) (citations omitted). Substantial evidence on the whole record is such evidence that demonstrates the reasonableness of the administrative decision. 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. 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. We will not, however, substitute our judgment for that of the agency; although the evidence may support inconsistent findings, we will not disturb the agency's finding if supported by substantial evidence on the record as a whole. Tallman, 108 N.M. at 129, 767 P.2d at 368. As long as substantial evidence supports the findings of the hearing officer, an appellate court will not disturb those findings on appeal. Yates v. Matthews, 71 N.M. 451, 379 P.2d 441 (1963).

Section 52-1-28(B) requires that where an employer denies a disability is a result of an accident, the claimant "must establish that causal connection as a probability by expert testimony of a health care provider." In other words, Herman had to show by medical evidence that decedent's death and heart attack was a medically probable result of the work-related stress. See Anderson v. Mackey, 93 N.M. 40, 42, 596 P.2d 253, 255 (1979).

The Hospital asserts that a possible cause only becomes a probable cause " 'when in the absence of other reasonable causal explanations it becomes more likely than not that the injury was a result of its action.' " Bufalino v. Safeway Stores, Inc., 98 N.M. 560, 565, 650 P.2d 844, 849 (Ct.App.1982) (quoting Parker v. Employers Mut. Liab. Ins. Co., 440 S.W.2d 43, 47 (Tex.1969)). Bufalino determined that speculation--which "arises when the probabilities of an event happened in one or two ways and there is not evidence as to which way it did happen"--is improper as a basis for determining causation. Id. The Hospital, however, does not reflect on Bufalin o's determination that the fact finder is given deference when faced with conflicting medical testimony regarding causation and medical probability. See id.; see also Yates, 71 N.M. at 453-54, 379 P.2d at 442-43 (trier of fact must resolve disagreement and determine true facts). As we will show, our review of the evidence indicates this latter proposition is dispositive.²

Three medical experts presented evidence, two on behalf of Herman and one for the Hospital. All testified that several factors could cause a heart attack and that several of the factors were present in decedent. Stress was identified as a minor risk factor. All of the experts agreed that smoking, high cholesterol, high blood pressure, diabetes, and a family history of heart disease were major factors. The Hospital's expert indicated that job-related stress was one of many minor factors, while Herman's experts testified it was one of four minor factors. The Hospital's expert testified that as the number of risk factors present in a patient increased, the risk of heart attack multiplied. One of Herman's experts testified that stress appeared to have exacerbated decedent's high blood pressure, which caused heart damage. This evidence was contradicted by other testimony.

We conclude that, even under whole record review, the testimony supports the hearing examiner's findings. Whole record review is not an excuse for an appellate court to reweigh the evidence and replace the fact finder's conclusions with its own. It allows the reviewing court greater latitude to determine whether a finding of fact was reasonable based on the evidence, and we hold that, in this case, even though the examiner was faced with conflicting evidence, its finding was reasonable. In Oliver v. City of Albuquerque, 106 N.M. 350, 352, 742 P.2d 1055, 1057 (1987), we noted that when a pre-existing condition is aggravated by employment-related stress, the requirement of a job-related injury is met. Thus, Herman only had to show to a medical probability that the stress aggravated what may have been a pre-existing condition.

In the present case, the Hospital's expert stated there was no causal connection, and one of claimant's experts is contended to have been discredited. However, claimant's other expert, a cardiologist, presented evidence to the effect that stress, although a minor risk factor when compared to several major risks that afflicted decedent, is a factor causing heart attacks. Evidence also was presented that the more factors present in a patient, the greater the likelihood of heart disease. Thus, the evidence is sufficient for us to sustain the fact finder under the Oliver standard and applying whole record review. Herman was not required to prove that stress was the only factor causing the fatal heart attack; he needed to show that the heart attack more likely than not was the result of stress. Bufalino, 98 N.M. at 565, 650 P.2d at 849.

We find the evidence presented here susceptible to a conclusion similar to that articulated in Oliver. To conclude otherwise, under these facts, would sanction a rationale that a finder of fact could never reach a determination of "medical probability" when opposing parties presented experts with diametrically opposed opinions. Conflicting evidence does not, by itself, demand a conclusion that only a "medical possibility" has been shown. The evidence presented here, simply stated, is that stress is a factor, albeit minor, in causing heart disease; the risk of heart disease multiplies with each additional risk; decedent was under employment-related stress both from an incident the day of her attack and from daily stress, and she had a heart attack. Moreover, there was contested evidence that, as evidenced by the autopsy, stress exacerbated decedent's hypertension and that absent the stress, decedent would have lived another five to ten years. There was sufficient medical testimony presented to support the hearing examiner's decision.

II. DID THE HOSPITAL HAVE ACTUAL NOTICE?

Section 52-1-29(B) excuses the written notice requirements of subsection (A), and states:

No written notice is required to be given where the employer or any superintendent or foreman or other...