Tallman v. ABF (Arkansas Best Freight)

• Decision Date: 13 October 1988
• Docket Number: No. 10125,10125
• Parties: Richard TALLMAN, Claimant-Appellee, v. ABF (ARKANSAS BEST FREIGHT), Self-Insured, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 363

767 P.2d 363

108 N.M. 124

Richard TALLMAN, Claimant-Appellee, v. ABF (ARKANSAS BEST FREIGHT), Self-Insured, Respondent-Appellant.

No. 10125.

Court of Appeals of New Mexico.

Oct. 13, 1988.

Certiorari Denied Nov. 21, 1988.

[108 N.M. 126] Bruce P. Moore, Albuquerque, for claimant-appellee.

Susan L. Snyder, Gregory P. Smith, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for respondent-appellant.

Carlos G. Martinez, Butt, Thornton & Baehr, P.C., Albuquerque, for amicus curiae, New Mexico Defense Lawyers' Ass'n.

William H. Carpenter, Albuquerque, for amicus curiae, New Mexico Trial Lawyers' Ass'n.

OPINION

BIVINS, Judge.

Respondent, Arkansas Best Freight (ABF), a self-insured employer, appeals a compensation order of the Workers' Compensation Division (WCD) awarding claimant Tallman temporary total disability and other benefits. ABF contends WCD erred by finding that: (1) Tallman suffered a compensable accidental injury on September 5, 1986; (2) Tallman was temporarily totally disabled as of September 5, 1986, as well as at the time of the hearing; and (3) Tallman did not willfully and knowingly misrepresent his physical condition when he applied for employment. As a fourth ground for reversal, ABF further asserts that WCD failed to find that Tallman willfully exposed himself to injury. Additionally, this court requested the parties, and invited amici curiae, to address the question of what standard of review applies to appeals from decisions by WCD. We hold that the whole record standard of review applies. Applying that standard to the issues raised, we affirm.

Summarizing the decision of WCD, the hearing officer found and concluded that Tallman sustained a compensable accidental injury on September 5, 1986, in the form of a disk protrusion at the L4-5 level of the spine, which rendered him temporarily and totally disabled. The hearing officer also found that Tallman had not reached maximum medical improvement, that he would require future medical treatment, and that he would benefit from vocational rehabilitation. ABF's appeal focuses on other findings and evidence concerning Tallman's pre-existing painful congenital back problem, first diagnosed in 1977, medical advice given at that time with respect to his job activities, his failure to reveal the congenital condition on his job application, and his continuing to do heavy work contrary to medical advice. The appeal also challenges the finding of temporary total disability. We discuss in more detail the facts surrounding these contentions under the points raised. Before doing so, we determine what standard of review to apply.

STANDARD OF REVIEW

Prior to the legislative creation of the workmen's compensation administration, predecessor to the current workers' compensation division of the New Mexico Department of Labor, claims for work-related injuries and diseases were heard by the district courts. In reviewing findings of fact made by the district courts in workers' compensation cases, the appellate courts in New Mexico applied the traditional substantial evidence standard of review as enunciated in Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985). That standard required, among other things, that we view the evidence in the light most favorable to support the trial court's findings and that we disregard all evidence unfavorable to the challenged findings. Under that standard, we also recognized that it was the sole responsibility of the trier of fact to weigh the testimony, determine the credibility of the witnesses, reconcile inconsistencies, and determine where the truth lies. To emphasize the narrowness of review under this traditional standard, we likened it in Sanchez to an examination of the evidence through a "small aperture." Id. at 476, 679 P.2d at 159. Thus, once we find enough substantial evidence to support the trial court's finding, our task is complete and we look no further.

The supreme court in Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 681 P.2d 717 (1984), however, while confirming the applicability of the substantial evidence standard for court-tried cases, modified and supplemented it with the whole record standard of review for findings of fact by administrative agencies. In Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 760 P.2d 793 (Ct.App.1988), we assumed, but did not decide, that the whole record review standard applies in worker's compensation cases decided by WCD. We now hold it does apply. Because WCD is an administrative entity, the whole record standard of review adopted by the supreme court in Duke City applies. This court is governed by New Mexico Supreme Court precedent. Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd.; Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

We do not read NMSA 1978, Section 52-5-8(B) (Repl.Pamp.1987) as requiring a different result. That section provides in part that "[a] decision of a hearing officer is reviewable by the court of appeals in the manner provided for other cases * * *." Duke City had been decided when Section 52-5-8 was enacted. The legislature is presumed to know the existing law. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971).

We requested the parties to brief the question of whether whole record review applies to appeals from WCD. We also invited amicus briefs. While the parties and amici seem to generally agree the modified standard applies, there is no consensus as to how it works. The parties and amici raise questions regarding application of the whole record review standard. For example, one brief asks the question that if the reviewing court does not reweigh the evidence, then what did the supreme court mean in Duke City when it said the reviewing court would decide "whether on balance, the agency's decision was supported by substantial evidence"? Id., 101 N.M. at 293, 681 P.2d at 719 (emphasis added). Counsel adds that "if the Appellate Court is not weighing evidence or judging the credibility of the witnesses, then why is it considering evidence other than [the] evidence supporting the * * * Hearing Officer's findings?"

Whole record review, as we read Duke City, does not contemplate or permit weighing the credibility of live witness testimony by the reviewing court. This would be impracticable, if not impossible. An appellate court does not observe the demeanor of live witnesses, cannot see a shift of the eyes, sweat, a squirm, a tear, a facial expression, or take notice of other signs that may mean the difference between truth and falsehood to the fact finder. Even an inflection in the voice can make a difference in the meaning. The sentence, "She never said she missed him," is susceptible of six different meanings, depending on which word is emphasized. Had the Duke City court intended to overrule the long line of cases in this state which defer that function to the fact finder, we believe it would have said so.

In quoting from its earlier case of New Mexico Human Services Department v. Garcia, 94 N.M. 175, 608 P.2d 151 (1980), the Duke City court makes clear that the whole record standard of review for findings of fact does not abrogate the substantial evidence rule as that rule has existed in New Mexico. A reviewing court may not reweigh the evidence and reassign the preponderance of evidence under either standard.

Whole record review does, however, contemplate a canvass by the reviewing court of all the evidence bearing on a finding or decision, favorable and unfavorable, in order to determine if there is substantial evidence to support the result. We analyze and examine all the evidence and disregard that which has little or no worth. As an example, under the legal residuum rule, an administrative agency's decision must be supported by some evidence that would be admissible in a jury trial. Duke City Lumber Co. v. New Mexico Envtl. Improvement Bd. If the only support found is inadmissible hearsay, then we may set aside the agency's finding or decision. In effect, whole record review involves a winnowing process.

We understand the reference in Duke City to balancing to mean that the reviewing court, after examining the evidence in the manner just described, decides whether there is evidence for a reasonable mind to accept as adequate to support the conclusion reached. The test is one of reasonableness. Viewing the live witness testimony as the fact finder did and considering all other evidence, favorable and unfavorable, and disregarding that which is discredited, we then decide if there is substantial evidence in the whole record to support the agency's finding or decision. See McMillian v. Schweiker, 697 F.2d 215 (8th Cir.1983), as an example where the reviewing court, on whole record review, concluded the agency's decision was not sustainable.

In most cases, the administrative agency performs more than one function. It may be the complainant, the prosecutor, and the fact finder. It is those dual roles that prompts the reviewing court to closely scrutinize agency decisions, rather than acting as a rubber stamp.

References to language in several cases decided since Duke City, as well as the seminal case on the subject, Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), may be useful. We then look at cases from this court decided since Duke City.

In National Council on Compensation Insurance v. New Mexico State Corporation Commission, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988), the supreme court summarized the whole record review standard as follows:

In Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 681 P.2d 717 (1984), this Court held that for purposes of reviewing administrative decisions the substantial evidence rule is expressly modified to include whole record review. Id. at 294, 681 P.2d at 720. Under whole record review, the...