Romero v. City of Santa Fe

• Decision Date: 28 March 2006
• Docket Number: No. 25,573.,25,573.
• Citation: 2006 NMCA 055,134 P.3d 131
• Parties: Dominic ROMERO, Worker-Appellant, v. CITY OF SANTA FE, Self-Insured, Employer-Appellee.
• Court: Court of Appeals of New Mexico

134 P.3d 131

2006 NMCA 055

Dominic ROMERO, Worker-Appellant, v. CITY OF SANTA FE, Self-Insured, Employer-Appellee.

No. 25,573.

Court of Appeals of New Mexico.

March 28, 2006.

Law Offices of Jeffrey C. Brown, Jeffrey C. Brown, Albuquerque, NM, for Appellant.

French & Associates, P.C., Katherine E. Tourek, Albuquerque, NM, for Appellee.

OPINION

PICKARD, Judge.

{1} In this case, we examine the requirement in NMSA 1978, § 52-1-24(B) (1990), that a worker must suffer a "psychologically traumatic event" in order to receive workers' compensation benefits for a work-related mental illness that is unaccompanied by physical injury. Because the worker in this case did not suffer a psychologically traumatic event within the meaning of the statute, we affirm the order of the workers' compensation judge (WCJ) denying compensation.

FACTS AND PROCEEDINGS BELOW

{2} Dominic Romero (Worker) worked as a swimming pool manager for the City of Santa Fe. As part of his duties, Worker was required to perform cleaning and maintenance tasks at one of the City's pools, which was an outdoor pool. Worker had complained to his supervisors on several occasions about ongoing problems with pigeons in the pool area and on the roof of the building adjoining the pool. Worker testified that on two occasions in March 2003, he went up onto the roof to clean up pigeon detritus. Worker estimated that he cleaned up about 160 pounds of pigeon feces and carcasses. Worker testified that he would get headaches after dealing with the pigeon matter. Subsequently, the City hired an independent company to clean up the roof. The company removed approximately one and one-half tons of pigeon matter from the roof.

{3} On June 5, 2003, Worker became ill. He began to experience photophobia, nausea, disturbing dreams, and body tremors. Worker saw several doctors and underwent extensive testing, but none of the testing revealed any non-psychological condition that could be causing his symptoms. Worker also saw a psychiatrist, Dr. Davis, who stated that Worker met most of the criteria for post-traumatic stress disorder (PTSD). Davis was initially skeptical that Worker suffered from PTSD, because a diagnosis of PTSD generally requires that the patient's symptoms are precipitated by an event that is objectively life threatening. Davis initially felt that Worker's experiences cleaning up pigeon detritus did not qualify as an objectively life-threatening event that would cause PTSD. Contrary to Worker's claim that Davis diagnosed him with PTSD, Davis did not clearly state an opinion on whether Worker suffered from PTSD. Davis stated that if he had to provide an alternate diagnosis, he would say that Worker was suffering from "major depressive disorder, generalized anxiety disorder and panic disorder, and adjustment disorder with depression and behavioral features." Davis further opined that having to clean up large amounts of pigeon detritus was outside of the usual experiences of most pool workers and doing so would evoke symptoms of distress in other workers.

{4} Worker brought a claim for compensation under Section 52-1-24(B), which states in full:

"primary mental impairment" means a mental illness arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances, but is not an event in connection with disciplinary, corrective or job evaluation action or cessation of the worker's employment[.]

{5} After a hearing, the WCJ denied compensation. The WCJ found that Worker had been in an "accident" on June 5, 2003, the date on which Worker first began to suffer significant symptoms. The WCJ also made the following findings:

23. As a direct and proximate result of the accident of June 5, 2003, to a reasonable medical probability, Worker suffered a mental impairment. The nature of the injury fits neither primary, nor secondary mental impairment. There was no physical injury, and no psychologically traumatic event outside of the Worker's usual experience.

24. The events of June 5, 2003, would not have evoked distress in a worker in similar circumstances.

{6} The WCJ entered the following conclusions:

2. [Worker's] accident of June 5, 2003, arose out of employment with Employer.

3. The accident of June 5, 2003, was in the course of employment with Employer.

....

6. Worker's injuries are purely psychological, but were not the result of a traumatic event so as to qualify as a primary mental impairment. Jensen v. New Mexico State Police, 109 N.M. 626 (Ct.App.1990).

{7} Worker appeals from the order denying compensation. Worker advances three arguments on appeal: (1) the WCJ's finding that Worker did not suffer a psychologically traumatic event that was outside of his usual experiences and would evoke symptoms of distress in similarly situated workers is not supported by substantial evidence; (2) the WCJ misinterpreted the law in determining that, in order for an injury to be compensable, the psychologically traumatic event must be catastrophic in nature; and (3) if the statute does require the traumatic event to be catastrophic in nature, it violates the equal protection clause of the New Mexico Constitution by discriminating against workers with mental disabilities. We reject all of Worker's arguments.

DISCUSSION

1. The WCJ Did Not Err in Determining That Worker Did Not Suffer a Psychologically Traumatic Event Under Section 52-1-24(B)

{8} Worker contends that (1) the WCJ erred in requiring Worker to show a "catastrophic" event in order to satisfy the "psychologically traumatic event" requirement of Section 52-1-24(B) and (2) the WCJ's decision that Worker did not suffer any event that would meet the requirements of the statute was not supported by substantial evidence.

{9} Worker's real disagreement is with the WCJ's determination that Worker did not suffer a psychologically traumatic event within the meaning of the statute. This is a conclusion of law and not a finding of fact that we would review for substantial evidence. Indeed, the WCJ did not make any underlying factual findings that Worker disputes. Accordingly, we will address Worker's arguments in the following manner. We will first set forth the requirements of the statute as established in prior cases. In so doing, we will address Worker's contention that the statute does not require a "catastrophic" event. We will then address the WCJ's determination that Worker did not experience a psychologically traumatic event within the meaning of the statute. Because the WCJ did not make underlying findings of historical fact to support his ruling, we will examine the record to ascertain the historical facts on which the WCJ based his decision, in order to ensure that there was substantial evidence in the record that would support the WCJ's decision. See State v. Lopez, 2005-NMSC-018, ¶ 22, 138 N.M. 9, 116 P.3d 80 (noting that where trial court has not entered specific findings, "we must draw from the record to derive findings based on reasonable facts and inferences and determine whether those facts and inferences support the conclusion reached by the court" (internal quotation marks and citation omitted)). Finally, we will address whether those facts show that Worker did not suffer a psychologically traumatic event within the meaning of the statute. This step requires us to review the WCJ's application of the law to the facts, making sure that the WCJ applied the correct law. This is a task we perform de novo. See Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320 (reviewing WCJ's application of law to facts de novo).

{10} In order to demonstrate a psychologically traumatic event under Section 52-1-24(B), a worker must show three things: (1) that a specific and identifiable psychologically traumatic event has occurred, (2) that the event is "generally outside of a worker's usual experience," and (3) that the event "would evoke significant symptoms of distress in a worker in similar circumstances." Jensen, 109 N.M. at 628, 788 P.2d at 384 (internal quotation marks, citation, and emphasis omitted). The first element, a psychologically traumatic event, is a "threshold criterion." Id. If no psychologically traumatic event is shown, a court need not analyze the second and third elements. Id. at 629, 788 P.2d at 385. In this case, we conclude that Worker did not suffer a psychologically traumatic event within the meaning of the statute. Thus, we do not reach the other elements.

{11} Jensen was the first case to examine what constitutes a psychologically traumatic event. In Jensen, the worker was a police dispatcher. Id. at 627, 788 P.2d at 383. Due to other employees quitting, the worker's facility experienced understaffing. Id. The dispatchers were required to work eight-hour shifts alone and often could not take any breaks. Id. The worker filed a claim seeking compensation due to an alleged primary mental impairment, which he contended was brought on by the understaffing. Id. Although this Court noted that being a dispatcher was considered a stressful job even under normal circumstances, id., we affirmed the WCJ, holding that understaffing did not qualify as a psychologically traumatic event under Section 52-1-24(B). Jensen, 109 N.M. at 629, 788 P.2d at 385.

{12} We began our analysis by noting the important changes that had recently been made to New Mexico workers' compensation law involving mental disabilities. We first examined Candelaria v. General Electric Co., 105 N.M. 167, 730 P.2d 470 (Ct.App.1986), superceded by statute as stated in Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, ¶ 33, 138 N.M. 331, 120 P.3d 413, in which we had held that a mental disability accruing gradually and resulting from stress...