Martin v. State, A-1-CA-36527

CitationNo. A-1-CA-36527
Case DateJune 24, 2020
CourtCourt of Appeals of New Mexico

ALFRED J. MARTIN, JR., Worker-Appellee/Cross-Appellant,
RISK MANAGEMENT DIVISION, Employer/Insurer-Appellants/Cross-Appellees.

No. A-1-CA-36527


June 24, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

David L. Skinner, Workers' Compensation Judge

Gerald A. Hanrahan
Albuquerque, NM

for Appellee

Paul L. Civerolo, L.L.C.
Evie M. Jilek
Albuquerque, NM

for Appellants


MEDINA, Judge.

{1} State of New Mexico Risk Management Division (Employer), and Alfred J. Martin (Worker) each appeal the Workers' Compensation Judge's (WCJ's) order awarding Worker permanent total disability (PTD) benefits, loss of use benefits, and attorney fees. Employer argues that: (1) Worker sustained only one compensable accidental injury, entitling him to a single statutory cap of attorney fees; (2) Worker is not entitled to PTD benefits because Worker's impairment rating due to brain injury improperly included

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impairments to other body parts and preexisting impairments; and (3) loss of use benefits should not have been awarded in addition to PTD. Worker, in turn, argues that the WCJ erred in failing to find a third compensable accidental injury entitling Worker to an additional award of permanent partial disability (PPD) benefits and attorney fees. We reverse in part and affirm in part.


{2} Worker underwent a total knee replacement on his left knee in November 2009. On December 9, 2009, Worker slipped and fell on an icy sidewalk, disrupting his knee replacement and causing further damage to the knee and tendons. The parties stipulated that Worker's fall arose out of and occurred in the course of his employment. Worker underwent surgery to repair the damage to his left knee on December 15, 2009. After surgery, Worker's surgeon warned Worker that he would likely suffer an infection due to the reopening of the surgical site within a month of his knee replacement surgery. Due to persistent pain and signs that the prosthetic materials were loose, Worker underwent another knee surgery on December 15, 2010, which included the complete removal of the left knee replacement components and cement; insertion of a custom antibiotic cement mold; and insertion of calcium phosphate antibiotic beads.

{3} Biopsies of tissue collected during surgery revealed bacterial infection in Worker's knee. The infection was treated with Daptomycin, administered intravenously via a catheter (PICC line) inserted into Worker's left knee. Worker was discharged on December 19, 2010, with the PICC line in place. On December 29, 2010, Worker suffered a rare and unexpected reaction to the Daptomycin, which developed into eosinophilic pneumonia and prolonged hypoxia.1 Worker was transported to the hospital where he lost consciousness and was placed on a ventilator for ten days. Worker reported total blindness when he regained consciousness. Worker's vision returned three days later, and he was discharged on January 11, 2011. Shortly after discharge, Worker's PICC line was removed and he was warned of the possibility of a pulmonary embolism. On January 28, 2011, Worker suffered a pulmonary embolism and was again hospitalized. After discharge on February 3, 2011, Worker began experiencing some memory loss, decreased organizational skills, and an inability to retain some information. Worker also experienced vision problems including accelerated macular degeneration2 and trouble recognizing objects. Worker underwent two additional knee surgeries related to his work accident, one on April 6, 2011, and another on September 13, 2011.

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{4} Worker timely filed a complaint with the Workers' Compensation Administration (WCA), and a trial was held on February 10, 2017. Worker and his wife testified at trial, and the WCJ admitted Worker's Exhibits 1 through 16, without objection. Those exhibits included: (1) Worker's medical records; (2) an IME report and addendum report; and (3) deposition testimony from Doctors Brian Shelly (Family Medicine), Kenneth Adams (Ophthalmologist), Robert Reidy (Ophthalmologist), and Kristen Reidy (Ophthalmologist). The WCJ also admitted Employer's Exhibits A through K without objection. Those exhibits included additional medical records and deposition testimony from Doctors Don Seelinger (neurology and electrodiagnostic medicine) and Rex Swanda (neuropsychologist), as well as Worker's deposition. After trial, the WCJ entered an order finding and concluding, in pertinent part:

1. Worker sustained [a] compensable injury to his left knee as a result of an accident on December 9, 2009[,] and [a] compensable injury to his brain as the result of a second compensable accident on December 29, 2010[;]

. . . .

5. As a result of the work accident on December 9, 2009, and the "catastrophic cascade of medical crises" that ensued as a direct result of this accident, Worker suffered a brain injury as the result of a second accident on December 29, 20[10;]

6. Worker sustained a brain injury resulting from a single traumatic work-related injury that caused a permanent impairment of thirty percent . . . or more as determined by the current AMA Guides to the Evaluation of Permanent Impairment[;]

. . . .

8. Worker is entitled to permanent total disability (PTD) benefits[,] pursuant to [NMSA 1978, Section] 52-l-25(A)(2) [(2003);]

. . . .

13. Worker has sustained a 75 percent partial loss of use of his left knee. Worker is entitled to scheduled injury benefits at 75 percent or $501.91 per week for 150 weeks pursuant to [NMSA 1978, Section 52-l-43(A)(30), (B) (2003);]

. . . .

15. Worker's attorney is entitled to an award of reasonable attorney fees, plus tax[;]

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. . . .

57. Solely due to the brain injury, and exclusive of . . . impairment . . . to any other body part, or any preexisting impairments of any kind, Worker has a 40 percent [Whole Person Impairment] WPI to his visual system.3

The WCJ concluded that Worker suffered two separate and distinct accidental injuries, and awarded two statutory caps of attorney fees, including tax, in the amount of $48,290.63, pursuant to NMSA 1978, Section 52-1-54 (2003, amended 2013).

{5} Employer filed a motion to reconsider the WCA's compensation order. The WCJ denied Employer's motion and issued an amended compensation order, confirming its findings of facts and conclusions of law. The WCJ clarified that "Worker presented [two] separate and distinct accidental injury claims allowing for two separate and distinct awards of benefits under the [W]orkers' [C]ompensation [A]ct [(the Act)]." The WCJ also determined that Worker did not receive a double recovery of benefits because the WCJ awarded loss of use benefits for Worker's knee injury and PTD benefits for his brain injury. Finally, the WCJ explained that he calculated Worker's impairment due to his brain injury "based on the totality of the experts' opinions." These cross-appeals followed.


{6} The parties' cross-appeals require this Court to address several issues. The first issue is whether the WCJ correctly determined the number of compensable accidental injuries Worker suffered, which in turn governs the WCJ's ability to award multiple caps of attorney fees. The second issue is whether the WCJ erred by including Worker's visual field and visual acuity impairments when assessing his brain impairment. Third is whether the WCJ erroneously included preexisting impairments when assessing Worker's brain impairment. Last, we evaluate the benefits awarded to Worker. In the course of discussing this issue, we address both parties' arguments regarding awards, including Employer's assertion that loss of use benefits cannot be awarded in addition to PTD benefits, as well as Worker's contention that the WCJ erred in failing to additionally award PPD benefits.

Standard of Review

{7} "In reviewing a workers' compensation decision we evaluate whether, based on the whole record, the decision is supported by substantial evidence." Madrid v. St. Joseph Hosp., 1996-NMSC-064, ¶ 38, 122 N.M. 524, 928 P.2d 250. "We review the evidence in the light most favorable to the decision, and we defer to the WCJ's resolution of conflicts in the evidence." Motes v. Curry Cty. Adult Det. Ctr., 2019-NMCA-022, ¶ 14, 458 P.3d 557. "We review the WCJ's application of the law to the facts de

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novo." Ruiz v. Los Lunas Pub. Schs., 2013-NMCA-085, ¶ 5, 308 P.3d 983. "We will affirm the WCJ's decision if, after taking the entire record into consideration and applying the law to the facts de novo, there is evidence for a reasonable mind to accept as adequate to support the conclusion reached." Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 7, 144 N.M. 782, 192 P.3d 777 (internal quotation marks and citation omitted).

I. Number of Compensable Accidental Injuries

{8} In order to put the parties' arguments in context, we briefly set out the general requirements for compensable accidental injuries and its relation to the awarding of attorney fees under the Act. "[O]ur courts have long recognized that an 'accidental injury' is an unlooked-for mishap or some untoward event that is not expected or designed." Griego v. Patriot Erectors, Inc., 2007-NMCA-080, ¶ 8, 141 N.M. 844, 161 P.3d 889 (internal quotation marks and citation omitted)). NMSA 1978, Section 52-1-28(A) (1987) provides:

A. Claims for workers' compensation shall be allowed only:

(1) when the worker has sustained an accidental injury arising out of and in the course of his employment;

(2) when the accident was reasonably incident to his employment; and

(3) when the disability is a natural and direct result of the

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