Sanchez v. Zanio's Foods, Inc.

• Decision Date: 20 October 2005
• Docket Number: No. 24,315.,No. 24,500.,24,315.,24,500.
• Citation: 123 P.3d 788,2005 NMCA 134
• Parties: Ray SANCHEZ, Worker-Appellee, v. ZANIO'S FOODS, INC., and Food Industry Self-Insurance Fund of New Mexico, Employer/Insurer-Appellants, Ray Sanchez, Worker-Appellee, v. Zanio's Foods, Inc., and Food Industry Self-Insurance Fund of New Mexico, Employer/Insurer-Appellants.
• Court: New Mexico Supreme Court

123 P.3d 788

2005 NMCA 134

Ray SANCHEZ, Worker-Appellee, v. ZANIO'S FOODS, INC., and Food Industry Self-Insurance Fund of New Mexico, Employer/Insurer-Appellants, Ray Sanchez, Worker-Appellee, v. Zanio's Foods, Inc., and Food Industry Self-Insurance Fund of New Mexico, Employer/Insurer-Appellants.

No. 24,315.

No. 24,500.

Court of Appeals of New Mexico.

October 20, 2005.

COPYRIGHT MATERIAL OMITTED

E. Justin Pennington, Law Offices of E. Justin Pennington, Albuquerque, NM, for Appellee.

Max J. Madrid, Susan Bisong, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Appellants.

OPINION

SUTIN, Judge.

{1} Defendants Zanios Foods, Inc. and Food Industry Self-Insurance Fund of New Mexico (collectively, Employer) seek review of a Workers' Compensation Administration (the Administration) award of benefits to Ray Sanchez (Worker) and of fees to his attorney.

BACKGROUND

{2} Worker was a truck driver for Employer. On August 1, 2001, Worker suffered an injury to his back when unloading meat he was delivering to a customer. Following the incident, Worker first saw Dr. Anthony Reeve on August 13, 2001. Dr. Reeve referred Worker to Dr. Richard Castillo for surgical evaluation. Dr. Castillo saw Worker in October 2001. In November 2002, Worker's counsel caused him to change medical providers from Drs. Reeve and Castillo to Dr. Jonathan Burg. Dr. Burg, who did not trust and, it appears, regularly rejected Dr. Castillo's surgical evaluations, referred Worker to Dr. Claude Gelinas for surgical evaluation.

{3} Employer paid temporary total disability and permanent partial disability benefits and on October 15, 2001, offered a light-duty position to Worker. After Worker rejected the offer, Employer reduced the benefits it paid to Worker. Thereafter, on October 17, 2002, Worker filed a complaint with the Administration.

{4} Sometime after litigation commenced, Employer discovered that Worker had suffered at least three back injuries before the August 2001 accident. The first incident occurred in 1988, when Worker suffered a low back injury while lifting materials on the job at Bowers Electric. He was treated by Dr. McCutcheon, and was unemployed for approximately a year and a half while pursuing a workers' compensation claim. The second incident occurred in 1992, when Worker suffered a low back injury while lifting kegs on the job at Coors Distributing. He was treated at Lovelace Medical Center and was unable to work for a period of time. The third incident occurred in 2000, when Worker was involved in an automobile accident for which he sought treatment at Lovelace for back pain and muscle spasms, again requiring Worker to take a leave of absence from work.

{5} After learning about Worker's medical history, Employer filed a motion in limine and, in the alternative, for sanctions. Employer asserted that Worker had not disclosed relevant and pertinent material information concerning his prior back injury condition and history. Employer contended that the doctors' causation opinions were inadmissible because they were based on misinformation and an untrue history. Employer asked the court to sanction Worker for untrue statements in his deposition and for misrepresenting his medical history to his doctors. The workers' compensation judge (WCJ) denied the motion. After a hearing on the merits, the WCJ entered findings of fact and conclusions of law and a compensation order was entered in Worker's favor. The appeal in No. 24,315 followed. The WCJ later awarded attorney fees to Worker's attorney and ordered Employer to pay one-half of the fees. Employer's appeal in No. 24,500 followed. We consolidated the two appeals.

{6} Employer raises four points of error, challenging: (1) the sufficiency of the evidence of causation to support the compensation order, (2) the denial of a motion to exclude certain expert testimony as a sanction for alleged bad faith discovery practices, (3) the determination that an offer of employment was reasonably rejected, and (4) the award of attorney fees.

{7} In short, we do not think the WCJ's disability determination can stand on the WCJ's findings, due to lack of sufficient clarity, explanation, and specificity in the findings and the disability conclusion, and we think it appropriate to remand for further consideration. In particular, the record presented to us is insufficient for us to assess precisely what injury the healthcare providers determined was caused by Worker's on-the-job accident and whether causation was properly found. This case's ambiguous record has been exacerbated by the failure of Worker to alert this Court to the relevant legal authority. This is an unusual case, and we conclude that the unusual remedy of remand for further findings is necessitated. As we describe later in this opinion, Worker has been diagnosed as having two maladies of the lower back: (1) radiculopathy at the L4 vertebra, and (2) degenerative disk disease at the L5-S1 vertebrae. The degenerative disk disease appears to have preexisted the on-the-job injury at issue; however, Worker does not appear to be claiming that the accident aggravated his existing condition, but rather that the accident caused the radiculopathy. Without additional findings and explanation from the WCJ, we are simply unable to meaningfully apply our workers' compensation law regarding preexisting injury and the circumstances under which a medical expert must possess a worker's full medical history before rendering an opinion as to causation of an injury. While we arguably could reverse on this record, we believe doing so could potentially deprive Worker of benefits when they may be justified and deprive him of the opportunity to properly demonstrate which injury was caused by his workplace accident.

{8} Later in this opinion, we delve further and in much greater detail into the background and reasons why we think the case should be remanded. Further, we think the WCJ's findings of fact and conclusions of law with respect to whether Worker reasonably refused Employer's offer of light duty work also lack sufficient clarity, explanation, and specificity, and we also think it appropriate to remand on this issue for further consideration.

STANDARD OF REVIEW

{9} We apply a whole record standard of review when considering appeals from judgments of the Administration. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.1988). Whole record review requires us to consider all the evidence properly admitted by the WCJ to determine whether there is substantial support for the judgment. Id. at 128, 767 P.2d at 367. The entire record is viewed in the light most favorable to the judgment. Martinez v. Fluor Utah, Inc., 90 N.M. 782, 783, 568 P.2d 618, 619 (Ct.App.1977). To warrant reversal, this Court must be persuaded 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. "When reviewing the sufficiency of evidence, we account for the whole record, including what fairly detracts from the result the fact finder reached." Rodriguez v. McAnally Enters., 117 N.M. 250, 252, 871 P.2d 14, 16 (Ct.App.1994). "To conclude that an administrative decision is supported by substantial evidence in the whole record, the court must be satisfied that the evidence demonstrates the reasonableness of the decision. No part of the evidence may be exclusively relied upon if it would be unreasonable to do so." Tallman, 108 N.M. at 128, 767 P.2d at 367.

DISCUSSION

I. THE CAUSATION ISSUE

{10} Worker bore the burden of establishing the causal connection between the 2001 accident and the injury to his back. In this regard, NMSA 1978, § 52-1-28(B) (1987), specifically provides:

In all cases where the employer or his insurance carrier deny that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider, as defined in [NMSA 1978, § 52-4-1 (1993)], testifying within the area of his expertise.

In satisfaction of this requirement, Worker relied on the opinions of two of his treating physicians, Dr. Reeve and Dr. Burg, as well as the opinion of a surgeon to whom he had been referred for evaluation, Dr. Gelinas. Below, Employer asserted that the testimony of these physicians could not satisfy Worker's statutory burden of proof, because they had not been informed about pertinent historical information. Employer renews this argument on appeal.

{11} Generally speaking, whole record review of WCJ determinations is deferential. See Rodriguez, 117 N.M. at 252, 871 P.2d at 16 (observing that "[w]e defer to the fact finder's resolution of conflicts in the evidence and indulge all inferences in favor of the findings" when engaging in whole record review). However, we are required to scrutinize the basis for expert opinions to ensure that all pertinent underlying facts have been taken into account. See Chavarria v. Basin Moving & Storage, 1999-NMCA-032, ¶ 20, 127 N.M. 67, 976 P.2d 1019 (observing that when engaging in whole record review, "we consider whether an expert has available all the pertinent underlying facts necessary to form an opinion"); Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 185, 848 P.2d 1108, 1112 (Ct.App.1993) (noting that "[f]ailure 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"); Grudzina v. N.M. Youth Diagnostic & Dev. Ctr., 104 N.M. 576, 582, 725 P.2d 255, 261 (Ct.App.1986) (observing that "an expert's opinion is only as good as the factual basis for it").

{12} For the present purposes, the case of Niederstadt v. Ancho Rico Consol. Mines, 88 N.M. 48, 536 P.2d 1104 (Ct.App.1975), assumes center stage. Niederstadt involved a challenge to...