Larry v. Convenient Mgmt. Servs., Inc.

• Decision Date: 20 May 2013
• Docket Number: NO. 32,074,32,074
• Parties: LARRY V. LAUGHLIN, Worker-Appellee/Cross-Appellant, v. CONVENIENT MANAGEMENT SERVICES, INC. and ARGONAUT INSURANCE COMPANY, Employer/Insurer-Appellants/Cross-Appellees.
• Court: Court of Appeals of New Mexico

LARRY V. LAUGHLIN, Worker-Appellee/Cross-Appellant, v. CONVENIENT MANAGEMENT SERVICES INC. and ARGONAUT INSURANCE COMPANY, Employer/Insurer-Appellants/Cross-Appellees.

NO. 32,074

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 20, 2013

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Gregory D. Griego, Workers Compensation Judge

Gerald A. Hanrahan

Albuquerque, NM

for Worker-Appellee/Cross-Appellant

Maestas & Suggett, P.C.

Paul Maestas

Albuquerque, NM

for Employer/Insurer-Appellants/Cross-Appellees

MEMORANDUM OPINION

WECHSLER, Judge.

{1} Worker Larry Laughlin appeals from a compensation order entered pursuant to the Workers' Compensation Act (the Act), NMSA 1978, Sections 52-1-1 to -70 (1929, as amended through 2007). Worker makes eight arguments relating to the factual findings made by the Workers Compensation Judge (the WCJ). We affirm the WCJ on seven issues but hold that the WCJ's determination that Worker had a whole body impairment rating of 11% is not supported by substantial evidence. Accordingly, we remand for the entry of a modified compensation order.

BACKGROUND

{2} Worker suffered accidents on August 22, 2008 and September 14 or 30, 2008 while working for Employer. Worker suffered injuries to both his lower back and left testicle. He filed a complaint with the Workers' Compensation Administration (the WCA) on March 3, 2009, requesting temporary total disability benefits until he reached maximum medical improvement, and permanent partial disability benefits upon reaching maximum medical improvement.

{3} The parties entered a recommended resolution on May 7, 2009 that provided a $5000 payment to Worker and named Dr. Benito Gallardo as Worker's authorized treating physician. Dr. Gallardo examined Worker on May 6, 2009 and found a causal connection between Worker's injuries and the accidents on August 22, 2008 and September 14 or 30, 2008. When Employer refused to provide any temporary totaldisability after Dr. Gallardo's report, Worker filed a second workers' compensation complaint. Employer rejected a second recommended resolution on September 29, 2009, and the claim entered the adjudication process. After a trial on the merits on December 22, 2011, the WCJ entered a compensation order on March 14, 2012. Employer appealed, and Worker filed this cross-appeal.

{4} In this cross-appeal, Worker challenges several factual findings: (1) Dr. Basel Aswad was an unauthorized healthcare provider; (2) Worker was at maximum medical improvement from September 10, 2010 through December 21, 2011; (3) Worker's impairment rating for his back injury was 8%; (4) Worker was not entitled to a point for training or vocational pursuit pursuant to Section 52-1-26.3(D); (5) Worker's loss of physical capacity from his injuries was from heavy to light duty; and (6) Worker's whole body impairment rating was 11%. Worker also argues that he was entitled to specific findings and conclusions that (1) he is entitled to an updated MRI and psychological evaluation, and (2) Worker was entitled to treatment by a urologist in Las Cruces.

STANDARD OF REVIEW

{5} "All workers' compensation cases are reviewed under a whole record standard of review." Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926. When our review consists of reviewing a "WCJ's interpretation of statutoryrequirements, we apply a de novo standard of review." DeWitt v. Rent-A-Ctr., Inc., 2009-NMSC-032, ¶ 14, 146 N.M. 453, 212 P.3d 341. We review the WCJ's application of the law to the facts de novo. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320. "After we determine the meaning of the statutes, we review the whole record to determine whether the WCJ's findings and award are supported by substantial evidence." DeWitt, 2009-NMSC-032, ¶ 14 (internal quotation marks and citation omitted). "Where the testimony is conflicting, the issue on appeal is not whether there is evidence to support a contrary result, but rather whether the evidence supports the findings of the trier of fact." Tom Growney Equip. Co., 2005-NMSC-015, ¶ 13 (internal quotation marks and citation omitted).

AUTHORIZED HEALTHCARE PROVIDER

{6} Worker argues that the WCJ erred in finding that Dr. Aswad was an unauthorized healthcare provider and in denying payment of Dr. Aswad's bill. Worker specifically challenges the WCJ's findings numbers 20-22, which provided that Dr. Aswad was an unauthorized healthcare provider and denied payment of his bill. In support, Worker points to testimony that he complained to a WCA ombudsman about the lack of medical treatment that Employer provided and that the omsbudman contacted the claim adjuster, who then authorized Worker to receivetreatment from Dr. Aswad. Worker therefore contends that Employer was required by the Act to pay Dr. Aswad's bill. See § 52-1-49(A) (requiring that "the employer . . . provide the worker in a timely manner reasonable and necessary health care services from a health care provider").

{7} However, Worker, in challenging the finding that Dr. Aswad was not an unauthorized healthcare provider, fails to point out other evidence supporting the finding. Employer initially selected Dr. James Skee as Worker's authorized healthcare provider, and the record does not contain any indication Dr. Skee referred Worker to Dr. Aswad. Worker testified that Archbishop Thaddeus Standford recommended Dr. Aswad and that he decided to seek treatment from Dr. Aswad based on this recommendation. Based on this testimony, the WCJ's finding that Dr. Aswad was an unauthorized healthcare provider under the Workers Compensation Act is supported by substantial evidence. See § 52-1-49(G) ("If the worker continues to receive treatment or services from a health care provider rejected by the employer and not in compliance with the workers' compensation judge's ruling, then the employer is not required to pay for any of the additional treatment or services provided to that worker by that health care provider."); 11.4.4.11(C)(1) NMAC (12/31/2012) ("A referral by an authorized [healthcare provider] to another [healthcare provider] shall be deemed a continuation of the selection of the referring [healthcare provider]."). Tothe extent that Worker's testimony that the claims adjuster authorized Dr. Aswad as an authorized healthcare provider provides conflicting testimony supporting Worker's position, it is the role of the factfinder to weigh conflicting evidence. See Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, ¶ 13, 123 N.M. 489, 943 P.2d 136 (stating that "we will not reweigh the evidence, even under the whole record standard of review" if there is conflicting evidence).

UPDATED LUMBAR MRI AND PSYCHOLOGICAL EVALUATION

{8} Worker next argues that the WCJ erred in not including specific findings or conclusions ordering that Worker is entitled to an updated lumbar MRI and a psychological evaluation. Worker points to evidence supporting his position. The independent medical examination (IME) panel recommended an updated lumbar MRI in order to evaluate Worker's back injury and his need for surgery. Dr. Jose Reyna, the only orthopaedic physician to evaluate Worker's back injury, requested the MRI, and Dr. Gallardo concurred with the need for the updated MRI. The IME panel also stated that Worker was in need of a psychological evaluation due to depression and thoughts of suicide. Dr. Gallardo also concurred that Worker needed a psychological evaluation.

{9} Employer does not dispute that the IME panel recommended an updated MRI scan of Worker's lower back and that Worker's back injury arose out of hisemployment. However, Employer points out that the WCJ did find that Worker has a continuing need for medical care and treatment for his injuries, including his back injury. Under these findings and conclusions, Worker's authorized healthcare provider, Dr. Gallardo, could order an MRI scan of Worker's back if he deems that it is reasonable and necessary for Worker's medical care and treatment. See § 52-1-49(A) ("[A]s long as medical or related treatment is reasonably necessary, the employer shall . . . provide the worker in a timely manner reasonable and necessary health care services from a health care provider."). Worker did not present any evidence that Dr. Gallardo submitted a request for an MRI to Employer or that Employer denied such a request. Additionally, the WCJ did not issue any findings or conclusion that would affirmatively bar Dr. Gallardo from submitting a request for Worker to receive an updated lumbar MRI. Under these circumstances, the lack of a specific finding or conclusion ordering an updated MRI on Worker's back is not error.

{10} Employer also does not dispute that the IME panel recommended a psychological evaluation of Worker. However, Employer contends that Worker's depression did not become an issue until the IME on August 25, 2011 and has not been causally linked to any work-related condition. Indeed, the IME panel report concluded that "[s]ince our specialty is neither psychology nor psychiatry, thecausation of [Worker]'s possible depression needs to be addressed by the specialist." At the formal hearing, Worker testified that he disclosed that he was depressed at the IME to Dr. Julianna Garcia and said that the cause of his depression was the recent death of his dog, without mentioning any other cause including his work-related injuries. Dr. Gallardo testified that a referral to a psychologist would be appropriate to determine how much of Worker's depression is work-related. Worker testified that Dr. Gallardo has not...