Varbel v. Sandia Auto Elec., 19,673.

• Decision Date: 09 July 1999
• Docket Number: No. 19,673.,19,673.
• Parties: Bonnie VARBEL, Worker-Appellant, v. SANDIA AUTO ELECTRIC and CNA Insurance Company, Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

988 P.2d 317

128 N.M. 7

Bonnie VARBEL, Worker-Appellant, v. SANDIA AUTO ELECTRIC and CNA Insurance Company, Employer/Insurer-Appellees.

No. 19,673.

Court of Appeals of New Mexico.

July 9, 1999.

Certiorari Denied August 17, 1999.

Robert L. Scott, Attorney at Law, P.C., Albuquerque, for worker-appellant.

Phyllis Savage Lynn, Yenson, Lynn & Allen, P.C., Albuquerque, for employer/insurer-appellees.

Certiorari Denied, No. 25,877, August 17, 1999.

OPINION

BUSTAMANTE, Judge.

{1} Bonnie Varbel (Varbel) appeals the Compensation Order terminating her temporary total disability benefits (TTD benefits). The Workers' Compensation Judge (WCJ) terminated her TTD benefits on the ground that Varbel failed to report to her employer, Sandia Auto Electric (Sandia), that she had returned to work. The WCJ concluded that her failure to report was a fraudulent omission that allowed her to continue receiving TTD benefits. Because there is insufficient evidence in the record to support a finding of fraud on Varbel's part, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Varbel began receiving TTD benefits after she injured herself in a work-related accident in 1994. The relationship between the parties over the issue of benefits has been contentious. In late 1994 Sandia sought termination of Varbel's TTD benefits for her alleged non-compliance with health care treatment. The parties settled that dispute by agreeing to a mediator's recommended resolution. In 1997 Varbel filed a complaint against Sandia alleging that Sandia wrongfully withheld TTD benefits and seeking payment of back TTD benefits. The crux of that dispute was whether Varbel's physician's recommendation that Varbel have surgery meant that she was no longer at maximum medical improvement (MMI) and thus eligible for TTD benefits, or whether Varbel remained at MMI until the time of the surgery. A secondary issue was to whom the nearly one-year delay between the physician's recommendation and the actual performance of surgery was attributable. The WCJ concluded Varbel was temporarily totally disabled from the date of the physician's recommendation until the time of the surgery and therefore entitled to back TTD benefits.

{3} Shortly after Varbel began receiving these benefits, Sandia became suspicious that Varbel may have begun working for the Las Palmas Restaurants, which are owned by Varbel's boyfriend, Juan Valdez (Valdez). In an effort to learn whether Varbel was working at the restaurants, Sandia hired an investigator. The investigator followed Varbel for a total of five days in the spring of 1998. During that time, the investigator observed Varbel at the Las Palmas Restaurants for approximately one hour and fifteen minutes. On two occasions, the investigator observed Varbel enter one of the restaurants, remain there for approximately five minutes, and depart—once with a plate of food.

{4} On March 30, 1998, the investigator entered the Las Palmas Restaurant on Central Avenue. Varbel, who was standing behind the counter with an order book, asked the investigator if she could help him. He commented on the menu's large selection and Varbel recommended a menu item. Varbel then took his order, took his payment, and made change for him from the register. Varbel took the order ticket to the kitchen. Later, she served his drink and meal. While eating, the investigator saw Varbel waiting on a party of two. As he was leaving, the investigator saw Varbel counting money.

{5} The following day, the investigator watched Varbel at the same restaurant. While positioned across the street, the investigator watched Varbel through binoculars. He saw her talking with two parties in the restaurant and one customer at the drive-up window. He did not see any exchanges of money, but he did observe Varbel handing bags of food to one customer in the restaurant and to the patron at the window. Less than an hour later, the investigator followed Varbel to the other Las Palmas Restaurant. He remained there for forty minutes. During that time, he watched the drive-up window with binoculars and observed Varbel handing food to and making change for one customer.

{6} On his final day of surveillance, the investigator did not see Varbel at either restaurant. Throughout his five days of observation, the investigator saw other employees at the restaurant, but never saw Varbel instruct those other employees in any way. Aside from the surveillance, the investigator did not do any other research or make any other inquiries. He never saw any applications for employment from Varbel, time sheets, tax documents, or other personnel paperwork that would indicate that Varbel was an employee of Las Palmas. The investigator did not know if the restaurants paid Varbel, nor did Sandia introduce any evidence that the Las Palmas Restaurants paid Varbel.

{7} Even before the surveillance was completed, Sandia filed an application on March 31, 1998, seeking termination. Sandia's theory was that Varbel never reported that she had returned to work, as is required by the Workers' Compensation Rules and Regulations (the Rules).

{8} In addition to the surveillance evidence, Sandia presented the testimony of a process server who attempted to serve a subpoena on the restaurants on April 1, 1998. The process server entered the restaurant and waited at the counter. At that time, Varbel, who approached the counter from the back of the restaurant, was counting money. After placing the money in the cash register, she asked the process server how she could help him. When he attempted to deliver the subpoena, Varbel replied that she could not accept it, that she did not work at the restaurant, and that no one present had authority to accept the subpoena. Varbel also told one other man who was present in the restaurant not to accept the subpoena. The evidence is not clear as to whether this man was an employee or a guest of the restaurant.

{9} Finally, in its effort to demonstrate that Varbel worked at the Las Palmas restaurants, Sandia also called both Valdez and Varbel to testify. Valdez testified that Varbel had been spending time at the restaurants since the two began dating in January 1997, coming and going as she pleased. He also testified that Varbel was "always" at the restaurants, testifying further that by "always" he meant that Varbel was at the restaurants almost every day but for no more than one and one-half to two hours per day.

{10} Varbel admitted to occasionally waiting on customers, counting money, and delivering money to the bank for the two restaurants, but denied instructing employees of the restaurants. More generally, she answered "no" when counsel for Sandia asked her whether she had been working for the restaurants for the six months prior to the application hearing. Instead, although she conceded that she may have been at the restaurants as much as sixteen hours per seven-day week, Varbel testified that she did not consider what she was doing for the restaurants to be work.

{11} After considering the evidence, the WCJ terminated Varbel's TTD benefits. Varbel now appeals the Compensation Order terminating her benefits.

DISCUSSION

{12} On appeal, Varbel argues that the WCJ erred in finding fraud because Sandia failed to prove that she had returned to work or that she had defrauded Sandia into paying compensation benefits. Varbel also argues that the WCJ should not have reduced or terminated her benefits because Sandia failed to offer her work, which she claims is required by NMSA 1978, § 52-1-25.1 (1990). Finally, Varbel argues that even if we uphold the finding of fraud, the WCJ erred by failing to reduce her benefits according to the formula prescribed in Section 52-1-25.1(C). Varbel also seeks attorney fees for the appeal.

{13} This Court applies whole record review to the WCJ's decision to terminate Varbel's benefits. See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.1988)

.

Whole record review ... contemplate[s] 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.

...[T]he 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.

Id. at 128, 767 P.2d at 367. With that in mind, we turn to an analysis of the first issue Varbel raises.

{14} Although it is not clear from the Compensation Order, there appear to have been two interrelated bases upon which the WCJ may have thought to rest his decision to terminate Varbel's benefits. The first appears to be that the WCJ concluded Varbel had returned to work (at the Las Palmas Restaurants) but had failed to report her return to Sandia, as required by 11 NMAC 4.3.12.1.2 (1996) (Rule 12.1.2). The WCJ then inferred that Varbel's failure to report was intentional, and therefore that she had fraudulently obtained TTD benefits.

{15} Rule 12.1.2 states, "When a Worker is receiving disability benefits, Worker shall report to Employer, within fifteen (15) days, any return to work, any written medical release to return to work provided to Worker, and any physical limitations imposed by a physician and provided to Worker in writing." In turn, 11 NMAC 4.3.12.3 (1996) (Rule 12.3) provides, "A violation of this section may result in the imposition of criminal, administrative and judicial sanctions." On the basis of those two rules the WCJ apparently assumed he could terminate Varbel's benefits based on a finding that Varbel fraudulently failed to report a return to work. That seems to be what the WCJ meant when, citing Rule 12.3, he wrote, "A sanction is appropriate where there is a failure to comply with the duty to report a...