Stocker v. Lovelace Rehab Hosp., No. A-1-CA-37869

CitationNo. A-1-CA-37869
Case DateJune 21, 2021
CourtCourt of Appeals of New Mexico

JENNIFER A. STOCKER, Worker-Appellant,

No. A-1-CA-37869


June 21, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

Rachel A. Bayless, Workers' Compensation Judge

Gerald A. Hanrahan
Albuquerque, NM

for Appellant

Camp Law, LLC
Minerva Camp
Albuquerque, NM

for Appellees


MEDINA, Judge.

{1} Jennifer Stocker (Worker) appeals the Workers' Compensation Judge's (WCJ) order denying coverage for a hip surgery she claims was reasonably necessary to address a compensable injury. On appeal Worker raises numerous claims, including (1) the WCJ erred in resetting her February 2016 trial and granting Lovelace Rehab Hospital/Hartford Insurance Group's (collectively, Employer) delayed request for an independent medical evaluation (IME); (2) the WCJ erred as a matter of law by denying

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coverage for Worker's hip surgery; and (3) whole record review does not support the WCJ's decision to deny coverage for the hip surgery. We affirm.


{2} In March 2011, Worker, a physical therapist assistant, was injured as a result of a patient falling on her. Worker's injuries were diagnosed as a fracture of her left superior pubic root, extending to the anterior wall of the acetabulum, for which she received care from Dr. John Sloan and then Dr. Paul Legant. After the accident, Employer provided Worker with temporary total disability (TTD) benefits until August 29, 2011. Worker reached maximum medical improvement (MMI) on October 13, 2011, and returned to work with a 3 percent whole person impairment rating. Employer commenced payment of permanent partial disability (PPD) payments to Worker on October 13, 2011. However, Worker continued to have pain in her left hip and groin. On April 17, 2012, WCJ Terry Kramer, approved a lump sum settlement agreement that covered 459 weeks of PPD benefit payments at 3 percent impairment. During the settlement hearing, the WCJ advised Worker that she maintained the right to seek modification should her condition change in the future.

{3} In June 2012, Worker resigned her position with Employer for reasons unrelated to her work injury and moved to Michigan. In March 2015, Worker met with Dr. Kevin Snyder, in Michigan who diagnosed Worker with chronic active sacroiliitis1 and referred her to Dr. Bruce Lawrence.

{4} In July 2015, Worker filed a complaint with the Workers' Compensation Administration (WCA), alleging injuries to her left hip, groin, buttock, leg, and pelvis, which she attributed to the 2011 work accident. Worker complained in part that she suffered three pelvic fractures as well as a labrum tear and cyst in her left hip. Worker sought benefits for unpaid medical bills incurred, including treatment by Dr. Snyder.

{5} In December 2015, Employer objected to Worker receiving treatment from Dr. Snyder because he was not licensed to practice medicine in New Mexico, and because Worker had not filed a motion with the director seeking approval of an out-of-state health care provider (HCP). In January 2016, Worker sought approval of Dr. Snyder's services, which the WCJ approved in February 2016.

{6} Trial on Worker's complaint was scheduled for February 11, 2016. However in, July 2016 the WCJ granted Employer's motion for an IME and reset trial for November 9, 2016. The IME occurred in July 2016, and the examination report was submitted to the WCJ in August 2016.

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First Trial

{7} The contested issues during Worker's November 2016 trial included the extent of injuries causally related to the May 2011 work accident; whether Worker's condition deteriorated in March or April 2015 such that she was no longer at MMI; identification of authorized HCPs under NMSA 1978, Section 52-1-49 (1990); and whether Worker is entitled to attorney fees. During trial the WCJ considered Worker's medical records, a form letter from Dr. Snyder, and deposition testimony from Dr. Legant. The WCJ also considered the IME panel report as well as deposition testimony from Dr. Brian Shelley and Dr. Daniel Duhigg of the IME panel. Upon consideration of the evidence, the WCJ issued a compensation order on November 23, 2016. In the order the WCJ found that Worker's injuries did not include a labrum tear and cyst. The WCJ also found in relevant part that Worker was not at MMI for injuries caused by the work accident and was therefore entitled to ongoing medical care; Dr. Snyder was an authorized HCP and Dr. Lawrence was in the chain of authorized referrals; and Worker was entitled to reasonable attorney fees. Neither Employer nor Worker appealed the compensation order.

{8} After entry of the 2016 compensation order Worker continued treatment with Dr. Snyder for the injuries identified by the IME panel. Dr. Snyder referred Worker to Dr. Robert Dowling for physical therapy as recommended by the IME panel and ordered in the 2016 compensation order. On March 28, 2017, Dr. Dowling noted limitations in Worker's hip that he believed were related to a labral tear and referred Worker back to Dr. Snyder for evaluation of the suspected tear. Dr. Snyder diagnosed Worker with a labral tear and referred her to Dr. Philip Schmitt for surgery. Employer denied coverage for Dr. Snyder's surgical referral as unrelated to Worker's injuries identified in the 2016 compensation order.

{9} Nevertheless, Worker consulted with Dr. Schmitt in April 2017 who agreed with the labral tear diagnosis and referred Worker to his partner Dr. Diana Silas for surgery. In May 2017, Employer applied for another IME to address whether Worker was at MMI and because Worker requested approval for surgical consultation and physical therapy. Dr. Silas performed surgery to repair Worker's labral tear in June 2017. Dr. Silas assumed Worker's care after the surgery. WCJ Rachel Bayless granted Employer's application for a second IME in June 2017. The second IME occurred in September 2017. In November 2017, Employer filed a complaint seeking reimbursement from Worker for alleged overpayment of benefits. Worker did not respond to Employer's complaint.

Second Trial

{10} Trial on Employer's complaint occurred in August 2018 during which the WCJ considered:

a. Whether Worker [has] reached [MMI] , and if so, the date of MMI[;]

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b. [i]f MMI has been reached, whether Employer. . . is entitled to a credit for overpayment of [TTD] benefits[;]

c. [i]f MMI has been reached, whether [W]orker is entitled to [PPD] benefits, and if so, to what extent and duration[;]

d. [t]he nature and extent of Worker's entitlement to past and future medical care pursuant to [Section] 52-1-49 . . . and the prior [c]ompensation [o]rders[;]

e. [w]hether Employee . . . is entitled to a credit for overpayment of indemnity benefits[;]

f. [w]ho are authorized [HCP]s as defined by [Section] 52-1-49.

In consideration of these issues the WCJ reviewed the 2016 compensation order, Worker's medical records since the 2016 compensation order, filings by both parties throughout the case, and the second IME panel report.

{11} After reviewing the evidence, the WCJ issued a compensation order in which she concluded that

7. Dr. Schmi[tt], Dr. Silas, and Dr. Silas' referrals after the June 5, 2017 surgery, who were out of state [HCP]s not approved by the [WCA] director and for whose services Employer. . . denied payment, are not authorized to treat Worker[;]

8. [m]edical records and form letters of providers who are not authorized [HCP]s are not admissible as substantive, direct evidence on the work accident and resulting injury[;]

9. [t]he issue of what injuries Worker suffered as the natural and direct result of the work accident were previously tried and adjudged in the 2016 [c]ompensation [o]rder[;]

10. [t]he 2016 [c]ompensation [o]rder resolved the issues presented for trial and was [a] final order for purposes of appeal[;]

. . . .

12. [a]s determined in the 2016 [c]ompensation [o]rder, the nature and extent of Worker's injuries causally related to the March 22, 2011[,] work accident did not include the alleged injury of a "Left hip: Labrum tear and cyst"[;]

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13. Worker having failed to appeal the 2016 [c]ompensation [o]rder or otherwise apply for modification of that compensation order, Worker is bound by [the WCJ]'s determination that her causally related injuries do not include a labral tear of the left hip.

The WCJ also concluded that Employer was entitled to credit for overpayment of benefits paid after Worker reached MMI on October 13, 2017. This appeal followed.


{12} Worker raises several legal arguments in response to the WCJ's 2018 and 2016 compensation orders. With regard to the 2018 compensation order, Worker argues that the WCJ erred as a matter of law in denying coverage for her hip surgery. Within this argument Worker raises five sub arguments including (1) the WCJ improperly weighed Worker's treating physicians testimony; (2) the WCJ erred in finding that Dr. Silas was not an HCP; (3) the WCJ erred in finding that the 2016 compensation order was binding; (4) the WCJ erred in applying a causation analysis when determining whether surgery was reasonable and necessary; and (5) the WCJ erred in denying coverage for Worker's surgery where Employer was in breach of the 2016 compensation order. Worker also argues that whole record review does not support the WCJ's denial of coverage for Worker's hip surgery in the 2018 compensation order. Finally, Worker argues that the WCJ erred prior to the 2016 compensation order in granting Employer's request for an IME and resetting trial. We address each of Worker's arguments in the order...

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