Howell v. Marto Electric

• Decision Date: 09 November 2006
• Docket Number: No. 26,180.,26,180.
• Citation: 148 P.3d 823,2006 NMCA 154
• Parties: John HOWELL, Worker-Appellant, v. MARTO ELECTRIC and Twin City Fire Insurance Co., Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

148 P.3d 823

2006 NMCA 154

John HOWELL, Worker-Appellant, v. MARTO ELECTRIC and Twin City Fire Insurance Co., Employer/Insurer-Appellees.

No. 26,180.

Court of Appeals of New Mexico.

November 9, 2006.

David S. Proffit, Albuquerque, NM, for Appellant.

Law Offices of Eva K. Rappaport, Kathryn Grusauskas, Beall & Biehler, an Association, Jose R. Blanton, Albuquerque, NM, for Appellees.

OPINION

PICKARD, Judge.

{1} In this case, we are asked to consider the effect of an employer's failure to provide notice of its decision regarding selection of health care providers, as required by New Mexico's Workers' Compensation scheme. Because the Workers' Compensation Judge (WCJ) erred as a matter of law when he found that evidence that neither the employer nor the worker chose the first health care provider was sufficient to rebut the presumption raised by the employer's failure to provide proper notice, we reverse and remand for further proceedings.

FACTS AND PROCEEDINGS BELOW

{2} The relevant facts are, for the most part, undisputed. John Howell (Worker) worked as an electrician for Marto Electric. On June 8, 2005, Worker fell while performing electrical work and suffered serious injuries to his hip, leg, and back. Worker was promptly transported by emergency medical personnel to the University of New Mexico Hospital (UNMH) where he received emergency care for five days. Marto Electric and its insurer, Twin City Fire Insurance Company (collectively, Employer), had notice of Worker's injury and authorized care at UNMH.

{3} Two days after the accident, Employer mailed a letter to Worker's home asking Worker to contact Employer regarding his injury, requesting medical authorization to obtain records and bills, and informing Worker that Employer had the right to direct medical care. The letter did not, however, state Employer's decision regarding which party would choose the initial health care provider. We refer to "health care provider" as "HCP." While it appears that the letter was mailed to Worker's home, Worker was still receiving treatment at UNMH and did not read or see the letter.

{4} While receiving treatment at UNMH, Worker was told that he would need additional rehabilitation for his injuries following his discharge from UNMH. Worker informed UNMH personnel that he wanted to go to a rehabilitation facility somewhere close to his home in Rio Rancho. Hospital personnel then contacted Rita Kelly, a claims adjuster for Employer, regarding preauthorization for Worker's admittance at Rio Rancho Nursing and Rehabilitation (RRNR). Although Kelly authorized a ten-day stay, RRNR refused to admit Worker because it did not want to comply with the Workers' Compensation fee schedules.

{5} On June 13, 2005, Worker was transferred to HealthSouth Rehabilitation Hospital (HealthSouth) in Albuquerque. Although this transfer was also preauthorized by Employer, Employer maintains that it had no input in the selection of HealthSouth. Nor did Worker request to be sent to HealthSouth; at the time, he was heavily medicated and unaware of the place to which he was being transferred.

{6} Worker received inpatient care at HealthSouth for approximately eight weeks and was discharged in mid-August. After his discharge, Worker sought treatment from his chiropractor, Dr. Buel Worzeniak, for problems with his sacrum and pelvis. Prior to this appeal, both parties agreed that the treatment was not authorized by Employer and that Worker would not make a claim for payment of the chiropractor's bills. After an appeal was filed in this case, Employer sought to supplement the record proper with evidence that Dr. Worzeniak's bills were actually paid by Employer. This motion was held in abeyance pending submission to a panel for a decision and is disposed of below.

{7} In mid-September, Worker told Employer that he wanted Dr. Carlos Esparza to be his HCP. Employer claims that it then advised Worker verbally that he would be able to make the first selection of HCP. Employer also faxed a "Notice of Change of Health Care Provider" form to Worker. Worker returned the completed form to Employer on September 16, 2005. On the same day, Employer filed a "Health Care Provider Disagreement Form Objection to Notice of Change" with the Workers' Compensation Administration (WCA), stating that while it agreed that Worker could choose Dr. Esparza as his HCP, Employer reserved the right to select a second HCP in sixty days.

{8} A hearing was conducted below to resolve the HCP dispute between the parties. After taking evidence, the WCJ found that non-emergency care began upon Worker's discharge from UNMH. The WCJ also determined that Employer did not provide written communication to Worker regarding the order of selection of HCPs. The WCJ observed that Employer's failure to provide notice in this regard gave rise to a presumption that Employer had selected Worker's initial HCP. However, the WCJ concluded that this presumption "vanishe[d]" once the other evidence recited above was presented; the WCJ determined that neither party selected HealthSouth as an HCP and, alternatively, that the selection of HealthSouth as an HCP was by implied agreement of both parties. The WCJ therefore concluded that Worker's selection of Dr. Esparza as his HCP constituted the initial HCP selection, such that Employer retained the right to select a second HCP if it wished. Worker appealed the WCJ's decision to this Court.

{9} On appeal, we understand Worker to challenge the WCJ's decision on three grounds. First, Worker attacks the WCJ's determination that the initial HCP, HealthSouth, was selected by neither party, contending that such a characterization is contrary to law. Second, and relatedly, Worker argues that the WCJ erred in concluding that the presumption of initial HCP selection vanished through the presentation of evidence that Employer did not deliberately select the first, non-emergency HCP. Third, and finally, Worker asserts that even if the WCJ correctly concluded that Employer could rebut the presumption of initial HCP selection in this fashion, the evidence presented by Employer below was insufficient. Because we are persuaded that the WCJ erred in its application of pertinent statutory and regulatory laws with respect to these arguments, we reverse and remand for further proceedings.

{10} In this opinion, we will first dispose of the pending motion and countermotion to supplement the record. Next, we will discuss the WCJ's determination that the initial HCP, HealthSouth, was selected by neither party. Finally, we will examine the WCJ's conclusion that the presumption of initial HCP selection vanished or could be rebutted through the presentation of evidence that Employer did not deliberately select the first, non-emergency HCP.

PENDING MOTION AND COUNTERMOTION TO SUPPLEMENT THE RECORD

{11} Initially, it is necessary to dispose of the pending motion and countermotion to supplement the record. As mentioned above, Employer filed a motion to submit to this Court evidence of chiropractor bills that were paid by Employer after the hearing below. Worker opposed the motion, and filed a countermotion seeking to submit evidence to this Court regarding changes to the form letter sent by Employer to injured workers. Both the motion and countermotion were held in abeyance pending submission to a panel for a decision.

{12} It is clear from the record that none of the materials with which the parties seek to supplement the record were submitted below. Generally speaking, this Court's review is limited to evidence presented to the WCJ in the first instance. Flowers v. White's City, Inc., 114 N.M. 73, 75-76, 834 P.2d 950, 952-53 (Ct.App.1992). In administrative appeals, this Court functions as a reviewing court and not as a fact-finder. See Gallegos v. City of Albuquerque, 115 N.M. 461, 464, 853 P.2d 163, 166 (Ct.App.1993) (observing that it is for the WCJ, not the appellate court, to weigh the evidence and make findings of fact); cf. Martinez v. N.M. State Eng'r Office, 2000-NMCA-074, ¶ 48, 129 N.M. 413, 9 P.3d 657 ("[I]n administrative appeals the district court is a reviewing court, not a fact-finder, and therefore may consider only evidence presented . . . in the first instance [below]."). Because the parties have suggested no compelling reason to depart from these well-established principles of appellate jurisprudence, we decline to consider the supplemental materials. The motion and countermotion are therefore denied.

DISCUSSION

{13} The selection of HCP is a highly contested issue in workers' compensation cases. Kelly Brooks et al., Survey, Workers' Compensation, Survey of N.M. Law: 1990-91, 22 N.M. L.Rev. 845, 864 (1992) (citing A. Larson, Workmen's Compensation Law § 61.12(b) (1981)). As we previously recognized The ideal behind allowing the parties to choose a physician is a balance between two values. On the one hand, the Legislature has recognized the value in protecting an employee's right to select his or her physician and to maintain a confidential physician-patient relationship. Balanced against this objective, the Legislature has also recognized the value of achieving maximum and quality control of an injured employee's medical and rehabilitative process.

Chavez v. Intel Corp., 1998-NMCA-175, ¶ 5, 126 N.M. 335, 968 P.2d 1198. New Mexico strikes a compromise approach between these two values, see 5 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 94.02[2] (2006), allowing both the worker and the employer an opportunity to select an HCP. NMSA 1978, § 52-1-49(B), (C) (1990); see also City of Albuquerque v. Sanchez, 113 N.M. 721, 727, 832 P.2d 412, 418 (Ct.App.1992). A brief overview of New Mexico's statutory and regulatory scheme for selection of HCPs is required before we proceed to the merits of Worker's appeal.

{14} Section 52-1-49(B) provides that the employer has the first opportunity either to select the initial HCP or to...