Sanchez v. Siemens Transmission Systems

• Decision Date: 19 March 1991
• Docket Number: No. 12164,12164
• Parties: Maria D. SANCHEZ, Claimant-Appellee, v. SIEMENS TRANSMISSION SYSTEMS and Zurich-American Insurance Group, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 104

814 P.2d 104

112 N.M. 236

Maria D. SANCHEZ, Claimant-Appellee, v. SIEMENS TRANSMISSION SYSTEMS and Zurich-American Insurance

Group, Respondents-Appellants.

No. 12164.

Court of Appeals of New Mexico.

March 19, 1991.

Certiorari Granted May 16, 1991.

[112 NM 237] Mark D. Jarner, Jarner & Olona, Los Lunas, for claimant-appellee.

Ray A. Padilla, Padilla, Riley & Shane, P.A., Albuquerque, for respondents-appellants.

OPINION

CHAVEZ, Judge.

Siemens Transmission Systems and Zurich-American Insurance Group (jointly "employer") appeal a compensation order of the Workers' Compensation Administration (WCA) awarding claimant temporary total disability and other benefits. Employer's brief raises five issues: (1) whether the whole record standard of review supports the workers' compensation judge's (WCJ) finding of total temporary disability as a result of a work-related accident; (2) whether the WCJ erred in awarding claimant vocational rehabilitation benefits; (3) whether the WCJ erred in permitting the hearing on attorney fees to proceed without claimant's presence; (4) whether the award of attorney fees is excessive; and (5) whether the award of post-compensation-order interest is proper. Other issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). We affirm as to issues one, three, and five; reverse the award of vocational rehabilitation benefits; and reverse and remand the award of attorney fees.

INTRODUCTION

The WCJ found that claimant sustained a compensable accidental injury on July 28, 1988, arising out of her employment with Siemens Transmission Systems. Claimant injured her lower back when she lifted forty-pound batteries at work. As a result of the work-related injury to claimant's lower back, the WCJ found claimant to be totally temporarily disabled. Despite claimant's efforts to return to work, the WCJ found that claimant was unable to perform her job duties or any other work for which she was fitted by age, education, training, general physical and mental capacity, and previous work experience. Claimant has a history of congenital disc disease and upper and lower back problems. However, the WCJ found that the accidental injury, rather than any preexisting condition, caused the disability. In addition to the July 28, 1988, injury, claimant also alleged a work-related injury on March 3, 1988. This claim, however, is not at issue. Claimant voluntarily withdrew the claim for the March 3, 1988, injury on the morning of the formal hearing.

The WCJ awarded claimant compensation benefits in the amount of $4,488.72 plus tax (for past due benefits) in addition to $182.68 per week until further order of the WCA. Further, the WCA found that claimant was entitled to vocational rehabilitation benefits. The WCJ awarded attorney fees in the amount of $9,000.00 (plus tax of 6%), 25% to be paid by claimant and 75% to be paid by employer. Post-compensation-order interest was also awarded at 15%. We discuss other facts pertinent to this appeal under the corresponding issues below.

1. WHOLE RECORD REVIEW

The whole record review standard applies to the decisions of the WCA. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). Under whole record review, this court views the evidence in the light most favorable to the WCA decision, but may not view favorable evidence with total disregard to contravening evidence. See National Council on Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278, 756 P.2d 558 (1988); Wolfley v. Real Estate Comm'n, 100 N.M. 187, 668 P.2d 303 (1983). We examine all the evidence bearing on the WCA decision, favorable and unfavorable, in order to determine whether there is substantial evidence and a reasonable basis to support the WCJ's decision. The WCJ's findings will not be disturbed so long as such findings are supported by substantial evidence on the record as a whole. See Tallman v. ABF (Arkansas Best Freight).

On appeal, employer contends the following: (1) there is not substantial evidence to support a finding that the battery-lifting incident of July 28, 1988, caused claimant's disability, and (2) there is not substantial evidence to support a finding of total temporary disability. Applying the whole record standard of review, we address each contention separately.

A. CAUSATION

First, we review whether or not claimant met her burden of proving a causal connection between her disability and a work-related injury. When the issue of causal connection is disputed, it is incumbent upon the claimant to present expert testimony to prove a causal connection between the disability and a work-related injury. See NMSA 1978, Sec. 52-1-28(B) (Repl.Pamp.1987). Such expert testimony must establish causal connection as a medical probability. See Beltran v. Van Ark Care Center, 107 N.M. 273, 756 P.2d 1 (Ct.App.1988); Hernandez v. Mead Foods, Inc., 104 N.M. 67, 716 P.2d 645 (Ct.App.1986).

In this case, claimant presented testimony of four doctors who treated claimant for the injury she suffered from the July 28, 1988, work-related accident. Each doctor testified that claimant's disability had a causal connection to a medical probability to the July 28, 1988, accident. To the extent that the testimony of one of the doctors, Dr. Thorpe, can be read as ambiguous or inconclusive, we note that it is the WCJ's prerogative to determine the weight to be given to the doctor's testimony. The worth of the testimony is viewed as the WCJ viewed it, not as viewed independently by this reviewing court. See Tallman v. ABF (Arkansas Best Freight).

Employer asserts, however, that claimant misrepresented the extent of her injuries to her doctors and failed to provide the doctors with an accurate medical history. Accordingly, it is employer's position that because the doctors relied on claimant's representations, the doctors' testimony regarding the causal connection between the battery-lifting incident and claimant's disability is not reliable.

To support the proposition that claimant misrepresented the extent of her injuries to her doctors, employer refers this court to the claimant's alleged March 3, 1988, injury (which was voluntarily withdrawn by claimant). Regarding the alleged injury on March 3, 1988, a medical report indicated that claimant "could not use her right arm." Employer notes, however, claimant testified that during this same time period she continued to work on the production line, but could not recall whether she missed any work after the alleged accident. We fail to see how claimant's testimony necessarily constitutes any misrepresentation or conflicts with the medical report. Furthermore, as with the doctors' testimony, the determination of the credibility of claimant's testimony is for the WCJ to determine. See Marez v. Kerr-McGee Nuclear Corp., 93 N.M. 9, 595 P.2d 1204 (Ct.App.1978).

We also examine the medical history that employer alleges claimant failed to convey to all of her doctors. Although claimant has a history of treatment for back problems prior to the July 28, 1988, accident, these problems are relatively minor. For example, on August 23, 1983, claimant had a complaint of "sciatica," a nerve disorder sometimes associated with lower back problems. In addition, claimant had been in several automobile accidents which resulted in neck injuries. The record also reveals that on May 7, 1987, claimant was treated for lower-back pain as a result of pulling weeds. Claimant also has a medical history of suffering from spinal arthritis.

When informed of claimant's former diagnosis of sciatica, one doctor stated that he "would consider that very significant, and I would consider this [the disability] a continuation of a diseased process more than I would an injury process." However, the same doctor who originally diagnosed the sciatica also testified that the battery-lifting incident was the cause of claimant's disability. Further, the doctor who treated claimant for her automobile injuries testified that the battery-lifting incident caused claimant's injury. This same doctor also testified that any previous problems claimant may have had with sciatica would not change his opinion as to the causal connection. The WCJ had evidence before him of both the claimant's medical history and the doctors' opinions when he made his decision. Again, it is the WCJ's prerogative to determine the weight to be given to each doctor's testimony. See Tallman v. ABF (Arkansas Best Freight).

We also consider the fact that claimant was able to work up until, but not after, July 28, 1988, the date of the accident. Assuming without deciding that claimant's prior medical history of back problems, together with any disc degeneration, contributed to claimant's ultimate disability, it still was not unreasonable for the WCJ to find causation based on the doctors' testimony. See Reynolds v. Ruidoso Racing Ass'n, 69 N.M. 248, 365 P.2d 671 (1961) (once claimant establishes that work-related injury caused the disability, it matters not whether a pre-existing injury contributed to the ultimate disability); Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985):

Further, we note that all four doctors also relied on independent medical tests to substantiate claimant's testimony. We are also aware of the testimony of one of claimant's co-workers as demonstrative of a causal connection between the battery-lifting incident and claimant's disability. The co-worker testified that on the day of the injury, July 28, 1988, claimant asked for help in finishing the battery-lifting job and complained that she hurt her back lifting the batteries.

We have considered both the testimony of claimant's doctors and the independent medical tests. Upon review, we cannot say that it was unreasonable for the WCJ to find claimant's disability the result of a work-related injury.

B. TOTAL...