Sanchez v. Molycorp, Inc., 12808

• Decision Date: 17 January 1992
• Docket Number: No. 12808,12808
• Citation: 113 N.M. 375,826 P.2d 971,1992 NMCA 7
• Parties: Art SANCHEZ, Claimant-Appellant, v. MOLYCORP, INC., and Unocal, a self-insured employer, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 971

826 P.2d 971

113 N.M. 375

Art SANCHEZ, Claimant-Appellant, v. MOLYCORP, INC., and Unocal, a self-insured employer Respondents-Appellees.

No. 12808.

Court of Appeals of New Mexico.

Jan. 17, 1992.

[113 NM 376] Anthony G. Lopez, Taos, for claimant-appellant.

William P. Slattery, Campbell & Black, P.A., Santa Fe, for respondents-appellees.

OPINION

MINZNER, Judge.

Claimant appeals from the decision of the workers' compensation judge (WCJ) denying his claim for temporary total disability and awarding attorney's fees based on an award for permanent partial disability. Claimant raises the following issues on appeal: (1) whether he was entitled to temporary total disability because Molycorp refused to allow him to return to work until he obtained a full work release; (2) whether certain findings of fact are supported by substantial evidence on the whole record; (3) whether the award of attorney's fees, which equals $28.32 per hour, was an abuse of discretion; and (4) whether the WCJ erred by terminating Claimant's right to future reasonable medical expenses. Respondents (Employer) concede that the claim for future medical care should have been dismissed without prejudice. Therefore, only the denial of the temporary total disability claim and the amount of attorney's fees are still disputed. We address the first and second issues under one heading. We reverse and remand for a hearing on the issue of temporary total disability. We direct the WCJ on remand to reconsider the amount of attorney's fees awarded and to amend the compensation order previously entered to indicate that the claim for future medical benefits is dismissed without prejudice.

I.

BACKGROUND.

Claimant worked as a "mucker/laborer" at Molycorp, a job described as requiring heavy work. On February 14, 1990, he was assigned to break boulders with a twenty-pound sledgehammer. Some time after he began the task, his sledgehammer bounced off a boulder and twisted out of his hands; the handle struck the tip of his right index finger, injuring it.

Claimant was taken to the Questa Health Center where a physician took x-rays and applied a splint. The treating doctor signed an injury report that released Claimant to "light duty" work. Later, the doctor gave deposition testimony in which he stated that by releasing Claimant to light duty, he meant that Claimant could do any work that was not affected by the presence of the splint. He also testified that he believed some of Claimant's responsibilities, specifically using a sledgehammer, would be adversely affected by the splint's presence.

Claimant went back to work that day and was told to finish his shift by sweeping around the offices. The next day, he returned to work with a written statement he had prepared. The statement provided:

To whom it may concern:

I the undersigned was injured on 2/14/90, while performing work assignment on grizzly level. Was taken to Questa Health Center by company safety representative Miguel Sanchez, where I was diagnoised [sic] and treated for a broken right hand index finger (pointer finger). Doctor at Questa Health Center suggested light duty for six weeks. Will attempt to perform job assigned by company under protest. Any further injury to injured finger due to company job assignment or disfigurement of injured finger due to first injury (Molycorp) will be subject to legal action.

Claimant's Exhibit 6.

Claimant was sent to several different foremen that day. He finally was given work driving a vehicle to pick up tools. At the end of the day, he testified that Molycorp's production superintendent, Ron Allum, instructed him not to return to work until he obtained a second medical opinion and a full work release. Employer objected to Claimant's testimony as hearsay. To buttress his claim that Molycorp refused to make light duty work available, Claimant also was prepared to testify that after he returned to work on the day he was injured, a Molycorp official, Dave Shoemaker, stated: "There is nothing wrong with Art. He is stronger with his left arm than most people are with both arms. Send him underground." The WCJ rejected his proffered testimony, ruling that both statements were hearsay and inadmissible. Employer did not call either Allum or Shoemaker to testify.

Claimant saw an orthopedic surgeon, Dr. Herbert Rachelson, on February 27. Dr. Rachelson diagnosed a small fracture at the tip of his finger, with an accompanying mallet deformity. He did not release Claimant to full duties until May 9. He considered Claimant "disabled" because Claimant needed full use of his right hand to perform his duties, with which the injury interfered.

Claimant did not work at the mine again until May 30, 1990. He delivered Dr. Rachelson's full release to Molycorp on May 9 but was required to undergo a physical and obtain a release from the company physician before he could return to work.

Claimant filed his claim against Molycorp on April 3, 1990. He sought temporary total disability benefits from February 15, 1990, until he returned to work, compensation for the permanent partial loss of use of his finger, past and future medical treatment, and mileage reimbursement. Employer contended that Claimant was not injured in the course and scope of his employment and that he was not entitled to any compensation, either for the partial loss of the use of his finger or for temporary total disability. Employer claimed that Claimant actually injured his finger prior to February 14 in a nonwork-related incident, and if the accident did occur within the course and scope of his employment, he was not entitled to any temporary total disability benefits because he failed to perform light duty work which was available.

The WCJ concluded that Claimant's injury was work-related and awarded him compensation for a four-percent permanent partial loss of use of his finger, plus past medical expenses and attorney's fees. The WCJ found that Claimant was released to work on February 14 and offered light duty "immediately" after Molycorp learned of the injury. The WCJ also found that Claimant told Molycorp that it would be liable for any damages to his finger while working light duty and that Molycorp advised Claimant "to get a second opinion as to whether [he] could return to work on either a light duty or full duty basis." Finally, she found that he did not make an appointment with Dr. Rachelson for two weeks and failed to inquire about the availability of light duty or full duty work until May 20.

She concluded that: "Claimant was able to perform his job duties either full duty or light duty from February 14, 1990, until May 30, 1990, and was therefore, not entitled to temporary total disability benefits pursuant to Section 52-1-25, N.M.S.A. (1978) (1987 repl. [sic] Pamp.)." Conclusion of Law 5. The WCJ disallowed his claim for temporary total disability from February 15, 1990 to May 30, 1990. There was evidence that Claimant's attorney had spent 60.2 hours in preparation, an amount of time that Employer's attorney had admitted was reasonable. The WCJ awarded $1,705.00 in attorney's fees.

II.

DENIAL OF THE TEMPORARY TOTAL DISABILITY CLAIM.

To establish that he was temporarily totally disabled, Claimant was required to prove that he was completely unable to perform the tasks comprising the work he did at the time he was injured, and that he was unable to perform any work for which he was able, based upon his age, education, and experience. Amos v. Gilbert W. Corp., 103 N.M. 631, 635, 711 P.2d 908, 912 (Ct.App.1985). Once he met his burden by presenting proof establishing his disability, however, "the burden of coming forward with the evidence [shifts] to the employer to demonstrate the [claimant's] employability ... for a particular job for which he is reasonably fitted." Id. (citing Brown v. Safeway Stores, Inc., 82 N.M. 424, 483 P.2d 305 (Ct.App.1970)).

Claimant argues that the WCJ denied him benefits for temporary total disability on two grounds, neither of which was sufficient. First, he argues that the WCJ apparently found he was released to full duty, and there was insufficient evidence to support that determination. Second, he argues that the WCJ apparently found light duty was offered, but in fact the evidence showed Molycorp refused to allow him to return to light duty work, even though he was physically capable during this period, and required him to obtain a full duty release from a physician. While he concedes that light duty work was available and that he was capable of performing it, he argues that there was insufficient evidence in the record as a whole to support a finding that Molycorp would have allowed him to work light duty. He contends that the availability of light duty work and his capacity to perform it cannot preclude his receipt of benefits for temporary total disability if there is sufficient evidence to support a finding that he was only capable of light duty and Molycorp refused to assign it to him.

Employer argues that Claimant offered only inadmissible hearsay to prove light duty work was not available to him. Employer also argues that the written statement brought to work the day after the accident was evidence that he was unwilling to do light work. It contends that the actual issue raised on appeal is whether there is substantial evidence to support the WCJ's denial of benefits for temporary total disability.

We agree with Employer that the threshold question is whether there is sufficient evidence to support the findings underlying the WCJ's denial of benefits. However, we agree with Claimant that if those findings are not supported by substantial evidence, then the remaining question is one of law. That question is whether the unchallenged findings support the conclusion that "Claimant was able to perform his job duties either full duty or light duty from February 14, 1990, until May 30, 1990, and was therefore, not entitled to temporary total...