Barraza v. Albuquerque Heights Healthcare

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 RUTH MARIE BARRAZA, 3 Worker-Appellant, 4 v. NO. 32,480 5 ALBUQUERQUE HEIGHTS HEALTHCARE 6 AND REHABILITATION CENTER, and THE 7 PHOENIX INSURANCE COMPANY / THE 8 TRAVELERS INSURANCE COMANY, 9 Employer/Insurer-Appellees. 10 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 11 David L. Skinner, Workers’ Compensation Judge 12 Law Office of Mel B. O’Reilly, LLC 13 Mel B. O’Reilly 14 Albuquerque, NM 15 for Appellant 16 Hale & Dixon, P.C. 17 Timothy Hale 18 Albuquerque, NM 19 for Appellees 20 MEMORANDUM OPINION 21 VANZI, Judge. 1 Ruth Marie Barraza (Worker) appeals from the Workers’ Compensation 2 Administration’s order. This Court’s first notice of proposed disposition proposed to 3 affirm the Workers’ Compensation Judge’s (WCJ) order based on our review of the 4 whole record on appeal. See Nat’l Council on Comp. Ins. v. N.M. State Corp. 5 Comm’n, 107 N.M. 278, 282 , 756 P.2d 558, 562 (1988) (“Under whole record review, 6 the court views the evidence in the light most favorable to the agency decision, but 7 may not view favorable evidence with total disregard to contravening evidence.” 8 (citations omitted)). Worker filed a memorandum in opposition to the proposed 9 disposition. As to Worker’s failure to identify in the docketing statement the specific 10 findings of fact for which Worker asserts there was no substantial evidence, we 11 disagree with Worker’s response. State ex rel. State Highway & Transp. Dep’t v. City 12 of Sunland Park, 2000-NMCA-044 , ¶ 15, 129 N.M. 151 , 3 P.3d 128 (noting that the 13 docketing statement takes the place of full briefing when a case is decided on the 14 Court’s summary calendar); Thornton v. Gamble, 101 N.M. 764, 769 , 688 P.2d 1268 , 15 1273 (Ct. App. 1984) (stating that counsel must set out all relevant facts in the 16 docketing statement, including those facts supporting the district court’s decision). In 17 addition, we are not persuaded by Worker’s other arguments and affirm the WCJ’s 18 compensation order. 19 Worker continues to argue that the WCJ’s determination of when she reached 20 maximum medical improvement (MMI) for the left eyebrow laceration and right knee [2] 1 injury was erroneous. [MIO 2] “[I]t is possible for a WCJ to determine when and if 2 a worker has reached MMI due to a mental impairment and also for an appellate court 3 to review that determination.” Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 45 , [4] 138 N.M. 331 , 120 P.3d 413 . Under the statute, MMI is “the date after which further 5 recovery from or lasting improvement to an injury can no longer be reasonably 6 anticipated based upon reasonable medical probability as determined by . . . health 7 care provider[s].” NMSA 1978, § 52-1-24.1 (1990). The WCJ determined that 8 Worker reached MMI on June 26, 2009, on or about the last date of her treatment with 9 Concentra. [RP 476, FOF 195] At the time of Worker’s last documented medical 10 treatment, Worker had essentially the same diagnosis and symptoms that were present 11 on June 26, 2009. See Tallman v. AFB (Arkansas Best Freight), 108 N.M. 124, 128 , [12] 767 P.2d 363, 367 (1988) (“We analyze and examine all the evidence and disregard 13 that which has little or no worth.”). [RP 466, FOF 64; RP 471, FOF141] 14 The WCJ was justified in discounting Dr. Knaus’ determination as to the date 15 of MMI and finding that the limited injuries Worker originally complained of 16 following this accident were resolved, [RP 476, FOF 195] and any continuing medical 17 conditions Worker was experiencing were due to pre-accident, as well as post- 18 accident, injuries that were not exacerbated by these limited injuries. [RP 474, FOF 19 176; RP 477, COL 5] The medical records in the record as a whole support the WCJ’s 20 determination. [RP 103-04, 108-116, 143-206] To the extent Worker suggests that [3] 1 this Court rely on the contradicting evidence, employing whole-record review does 2 not allow a reviewing court to make its own credibility determinations or reweigh the 3 evidence. See Sanchez v. Molycorp, Inc., 103 N.M. 148, 153 , 703 P.2d 925, 930 (Ct. 4 App. 1985 ) (“[I]t is a matter for the trier of fact to weight the evidence, determine the 5 credibility of witnesses, reconcile inconsistent statements, and decide the true facts.”). 6 Based on the whole record, we conclude that a reasonable mind could find that 7 Worker reached MMI on June 26, 2009, and that there is substantial evidence 8 demonstrating the reasonableness of the WCJ’s decision. See Barela v. ABF Freight 9 Sys., 116 N.M. 574, 579 , 865 P.2d 1218, 1223 (Ct. App. 1993) (“When reviewing for 10 sufficiency of the evidence from a workers’ compensation order, the court reviews the 11 record as a whole in order to be satisfied that the evidence demonstrates the decision 12 is reasonable.”). 13 Worker relies on Dr. Knaus’ determination that she did not reach MMI until 14 February 24, 2011, for her work-related injuries and was therefore entitled to 15 temporary total disability benefits (TTD). [MIO 2] Specifically, Worker argues that 16 the undisputed evidence is that she was out of work for more than seven days and is 17 entitled to TTD benefits because she did not reach MMI until February 24, 2011. 18 [MIO 2] However, we have determined above that there was sufficient evidence in 19 the whole record to support the WCJ’s determination that Worker reached MMI on 20 June 26, 2009. The WCJ was responsible for resolving any conflicts in the medical [4] 1 evidence as to the date of MMI. See Sanchez, 103 N.M. at 152 , 703 P.2d at 929 ; see 2 also Santa Fe Pac. Gold Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 33 , 143 3 N.M. 215 , 175 P.3d 309 (“The trial court is in a better position than is an appellate 4 court] to judge the credibility of witnesses and resolve questions of fact.” (alterations, 5 internal quotation marks, and citaiton omitted). The WCJ is not bound to accept the 6 testimony of one medical expert over that of another in the case. See Sanchez, 103 7 N.M. at 152, 703 P.2d at 929 ; cf. Peterson v. N. Home Care, 1996-NMCA-030 , ¶ 10, [8] 121 N.M. 439 , 912 P.2d 831 (affirming the WCJ’s conclusion that the uncontradicted 9 testimony as to impairment rating was found to be unworthy of belief and that the 10 WCJ was justified in finding no impairment). Therefore, we affirm the WCJ’s order 11 as to TTD benefits. 12 For these reasons, and those stated in the first notice of proposed disposition, 13 we conclude that there was sufficient evidence in the whole record to support the 14 WCJ’s determination, and affirm the compensation order. 15 IT IS SO ORDERED. 16 __________________________________ 17 LINDA M. VANZI, Judge 18 WE CONCUR: 19 _________________________________ [5] 1 RODERICK T. KENNEDY, Chief Judge 2 _________________________________ 3 JAMES J. WECHSLER, Judge