Martinez v. Southwest Landfills, Inc.

• Decision Date: 15 February 1993
• Docket Number: No. 13590,13590
• Citation: 1993 NMCA 20,115 N.M. 181,848 P.2d 1108
• Parties: Henry MARTINEZ, Claimant-Appellant, v. SOUTHWEST LANDFILLS, INC., and Mountain States Mutual Casualty Company, Inc., Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 1108

848 P.2d 1108

115 N.M. 181

Henry MARTINEZ, Claimant-Appellant, v. SOUTHWEST LANDFILLS, INC., and Mountain States Mutual Casualty Company, Inc., Respondents-Appellees.

No. 13590.

Court of Appeals of New Mexico.

Feb. 15, 1993.

[115 N.M. 183] Stephen E. McIlwain, Albuquerque, for claimant-appellant.

Robert Bruce Collins, Albuquerque, for respondents-appellees.

OPINION

BIVINS, Judge.

Worker appeals the Workers' Compensation Administration's Compensation Order awarding him 22% temporary partial disability as a result of an accidental injury on March 19, 1989. He raises four issues: (1) whether substantial evidence supports the award of 22% temporary partial disability; (2) whether the Workers' Compensation Judge (WCJ) erred in not awarding Worker reimbursement for charges incurred by him for examination by a health care provider of his choice; (3) whether the WCJ erred in not transferring Worker's health care to the health care provider chosen by Worker; and (4) whether the WCJ erred in concluding that all disputes over benefits due before August 19, 1990, had been fully resolved by the recommended resolution of Worker's first claim. We decline to address the first issue challenging the sufficiency of the evidence because Worker failed to comply with the appellate rule governing such a challenge, SCRA 1986, 12-213(A)(3) (Repl.1992), and we affirm on the remaining issues. We take this opportunity to spell out the requirements for a challenge to the sufficiency of the evidence under the whole record review standard, and to explain why compliance is necessary.

We summarize the portions of the WCJ's decision relevant to this appeal. Employed as a heavy equipment operator for Employer, Worker suffered an accidental injury within the scope of, and in the course of, his employment on March 19, 1989. Employer provided medical care as well as rehabilitation services with the goal of assisting Worker in re-entering the job market. Employer also paid Worker temporary total disability benefits from the date of the accident until February 1, 1990. After Worker filed his first claim for benefits, he and Employer attended a mediation conference and entered into a stipulation providing, among other things, that Worker suffered a disability to some percentage as a result of his accidental injury; that Worker would accept 10% partial disability benefits from February 1, 1990, to August 12, 1990, in full settlement of his claim prior to the mediation conference; that Worker would receive temporary total disability benefits from August 13, 1990, until October 13, 1990, or until further order of the Workers' Compensation Administration; and that the parties would attempt to resolve the issue of permanent disability by October 13, 1990, and, failing to do so, either party could pursue a resolution of that issue. Unable to resolve the issue, Worker filed his second claim and, after a second mediated recommended resolution was rejected by Employer, the matter went to hearing before the WCJ.

As a result of that hearing, the WCJ awarded Worker 22% temporary partial disability benefits from February 1, 1990, until further order. The WCJ rejected Worker's claim for reimbursement for charges incurred for an independent medical examination by Dr. Racca, and also rejected Worker's claim that his medical care should be transferred to Dr. Racca. This appeal followed. The WCJ concluded that the law in effect in 1987 applies and the parties do not disagree.

1. Substantiality of the Evidence

Worker challenges the sufficiency of the evidence to support the award of 22% temporary partial disability benefits, claiming that he should have been awarded 100% temporary disability benefits. We decline to review this question because Worker has failed to comply with SCRA 12-213(A)(3) and related case law.

SCRA 12-213(A)(3) provides in pertinent part:

A contention that a ... finding of fact is not supported by substantial evidence shall be deemed waived unless the summary of proceedings includes the substance of the evidence bearing upon the proposition, and the argument has identified with particularity the fact or facts which are not supported by substantial evidence.... (Emphasis added.)

Worker has not complied with this rule. The summary of proceedings portion of his brief-in-chief, as well as the argument portion, selectively set forth evidence which would support a different result. Worker acknowledges that Employer presented evidence concerning Worker's rehabilitation, medical evidence from the treating physicians, and evidence concerning Worker's disability. However, he neither provides us with the substance of this evidence or other evidence which would support the WCJ's findings on disability, nor states the reasonable inferences that could be drawn from the evidence, nor acknowledges how Employer's evidence could be viewed together with the evidence offered by Worker to support Worker's claim on appeal. Instead, Worker's brief-in-chief concentrates on the evidence he presented through Dr. Racca, as to impairment, and Dr. Krieger, as to disability.

Predictably, it was left to the opposing party to provide the missing evidence. This missing evidence includes testimony by job placement specialists, cross-examination testimony of Worker's disability specialist, medical evidence unfavorable to Worker's position, and most importantly, evidence of Worker's lack of cooperation in seeking reemployment. This last evidence undoubtedly influenced the award made by the WCJ.

Equally predictable, Worker, in his reply brief, for the first time, acknowledges apparent conflicts in the testimony of the two disability specialists, as well as other evidence brought to our attention by Employer. He then seeks to explain away this countervailing evidence. This reluctant unfolding of all the evidence commonly occurs where the appellant fails to comply with SCRA 12-213. Because of the frequency with which this occurs, we now set forth the appellant's responsibilities in challenging the sufficiency of the evidence under the whole record review standard, as required by the appellate rules and related case law.

In 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), we went to some length to set forth the requirements for whole record review in administrative proceedings. Taking the teachings of that case together with SCRA 12-213, we believe that a challenge to the sufficiency of the evidence under whole record review involves a two-step process.

Step one. The party challenging the sufficiency of the evidence supporting a proposition must set forth the substance of all evidence bearing upon the proposition. SCRA 12-213 requires this. See also Tallman, 108 N.M. at 128, 767 P.2d at 367.

Step two. Once the challenging party has set forth the substance of all the pertinent evidence, the party must then demonstrate why, on balance, the evidence fails to support the finding made.

In setting forth the substance of all the pertinent evidence, the appellant, in order to make a convincing argument, must present all supporting evidence in the light most favorable to the agency's decision. This includes stating all reasonable inferences that can be drawn from the facts, while acknowledging that "[t]he possibility of drawing two inconsistent conclusions from the evidence does not mean the agency's findings are unsupported by substantial evidence." Id. at 129, 767 P.2d at 368. This kind of presentation takes into account and recognizes the considerable deference the reviewing court must give to the agency's findings. As we stated in Tallman, "[t]he reviewing court starts out with the perception that all evidence, favorable and unfavorable, will be viewed in the light most favorable to the agency's decision." Id. This does not mean, however, that the party challenging the substantiality of the evidence is prohibited from pointing out deficiencies in the evidence that the decision maker below might have considered favorable.

Indeed, our second step contemplates that the appellant point out evidence that fairly detracts from the evidence relied upon by the decision maker in support of the challenged proposition. See id. The whole record review standard, unlike the traditional standard of appellate review, requires the reviewing court, in determining the substantiality of the evidence, to " 'take into account whatever in the record fairly detracts from its weight.' " Id. (quoting Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). This permits the appellant, for example, to demonstrate why one expert's opinion should have been given more weight than another. Failure of an expert to have available all underlying facts needed to form a reasonable opinion is but one example of evidence lessening the weight of expert testimony. The bottom line, however, is that the appellant must persuade the reviewing court that "it cannot conscientiously say that the evidence supporting the decision is substantial, when viewed in the light that the whole record furnishes." Tallman, 108 N.M. at 129, 767 P.2d at 368 (emphasis added).

If there is compliance with the steps listed above, then the reviewing court should be able to rely entirely on the appellant's brief-in-chief in canvassing all the evidence bearing on a finding or a decision, favorable or unfavorable, and in deciding whether there is substantial evidence to support the result, using the approach we outlined in Tallman. SCRA 12-213 contemplates that the canvass and determination be made on the basis of appellant's presentation in the brief-in-chief. The appellee should likewise be able to rely on the brief-in-chief in arguing why, on balance, the finding or decision is supported by substantial evidence. Neither the appellee nor the reviewing court should have to supplement the...