Hensley v. Am. Prod. Serv., Inc

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 TERRY HENSLEY, 8 Worker-Appellant, 9 v. NO. 29,983 10 AMERICAN PRODUCTION 11 SERVICES, INC., and LIBERTY 12 MUTUAL INSURANCE, 13 Employer/Insurer-Appellees, 14 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 15 Gregory D. Griego, Workers’ Compensation Judge 16 Trenchard & Hoskins 17 Royce E. Hoskins 18 Roswell, NM 19 for Appellant 20 Allen, Shepherd, Lewis, Syra & Chapman, P.A. 21 Kimberly A. Syra 22 Albuquerque, NM 23 for Appellees 24 MEMORANDUM OPINION 25 FRY, Chief Judge. 26 Worker appeals an order of the worker’s compensation judge (WCJ) dismissing 27 his complaint with prejudice. We issued a calendar notice proposing to summarily 1 affirm the dismissal. Worker filed a timely memorandum in opposition, which we 2 have given due consideration. Unpersuaded, we affirm. 3 DISCUSSION 4 “We review workers’ compensation orders using the whole record standard of 5 review.” Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10 , 142 N.M. 605 , 168 P.3d 6 177. “In applying whole record review, this Court reviews both favorable and 7 unfavorable evidence to determine whether there is evidence that a reasonable mind 8 could accept as adequate to support the conclusions reached by the fact finder.” 9 Levario v. Ysidro Villareal Labor Agency, 120 N.M. 734, 737 , 906 P.2d 266, 269 (Ct. 10 App. 1995 ). “Where the testimony is conflicting, the issue on appeal is not whether 11 there is evidence to support a contrary result, but rather whether the evidence supports 12 the findings of the trier of fact.” Tom Growney Equip. Co. v. Jouett, 2005-NMSC- 13 015, ¶ 13, 137 N.M. 497 , 113 P.3d 320 (internal quotation marks omitted). 14 Notice 15 We first address Worker’s argument that the WCJ erred in concluding that 16 Employer did not receive adequate notice that Worker sustained a compensable injury 17 on August 27, 2008. [DS 8-9; MIO 6-10] A worker claiming a compensable injury 18 is required to file notice of the accident in writing within fifteen days after the worker 19 knew or should have known about the accident’s occurrence. NMSA 1978, Section 20 52-1-29(A) (1990). However, “[n]o written notice is required to be given where the 21 employer or any superintendent or foreman or other agent in charge of the work in [2] 1 connection with which the accident occurred had actual knowledge of its occurrence.” [2] Id. 3 The employer has actual notice of a job-related accident as required by 4 the statute when he has knowledge of the injury and some knowledge of 5 accompanying facts connecting the injury or illness with the 6 employment, and indicating to a reasonably conscientious manager that 7 the case might involve a potential compensation claim. 8 Herman v. Miners’ Hosp., 111 N.M. 550, 555 , 807 P.2d 734, 739 (1991) (internal 9 quotation marks and citation omitted). 10 Worker argues that Employer had actual notice of the accident and work-related 11 injury within the statutorily prescribed time period such that written notice was not 12 required. [DS 3-4; MIO 7] We are not persuaded. 13 As discussed in the calendar notice, [CN 5-7] it is not disputed that Employer 14 knew about the August 27, 2008, incident in which Worker drove Employer’s truck 15 through the intersection into a field of sand. [DS 2] However, the WCJ concluded that 16 there was insufficient evidence that Employer knew that the incident resulted in an 17 injury. [RP 87 (fof 8), 89 (col 4)] Michael Burleson and Ronnie Mathews, Worker’s 18 supervisor, went to the scene of the incident and had a wrecker pull the truck out of 19 the sand. [DS 2; MIO 7] The truck was not damaged and Worker drove it back to the 20 yard. [DS 2] As Worker acknowledges, Burleson and Mathews asked Worker if he 21 was injured from the incident and he denied it. [MIO 7; RP 73] Although Worker 22 claims that he told Mathews a few days later that he had hurt his back during the [3] 1 incident and was going to see a doctor, both Burleson and Mathews testified that they 2 did not know Worker had been injured in the incident. [DS 3] In addition, the record 3 indicates that Burleson testified that Worker complained of hip pain on August 23, 4 2008, and again complained of hip pain following the incident. [RP 73] Although 5 Burleson acknowledged that Worker was limping on August 27, the record indicates 6 that Burleson testified that he thought the limp was due to Worker’s pre-existing hip 7 pain. [RP 73] Thus, based on Worker’s denial of an injury and testimony from 8 Employer’s agents that Worker did not tell them he was injured in the incident, we are 9 not persuaded that the WCJ erred in determining that there was insufficient evidence 10 that Worker gave verbal notice of an accident that resulted in an injury. 11 Moreover, contrary to Worker’s assertion, we are not persuaded that there was 12 sufficient evidence that Employer could be charged with actual knowledge based on 13 Employer’s awareness of the circumstances. [MIO 7-10] Worker claims that 14 Employer should have been alerted to a potential workers’ compensation claim based 15 on Employer’s knowledge of the nature of the accident, the potential for injury from 16 the accident, and the knowledge that Worker was seeking medical treatment. [MIO 17 8] As we previously discussed, [CN 6] we are not persuaded that Burleson and 18 Mathews would know from the nature of the incident that it was likely to cause the 19 injury claimed by Worker. The truck was not damaged, Worker drove it back to the [4] 1 work site, [DS 2] and Worker denied being injured in the incident. [RP 73; MIO 3] 2 In addition, other than Worker’s own testimony, which was contradicted by 3 Employer’s agents, there is no indication that Employer knew that Worker was 4 seeking medical treatment for an injury that was caused by the incident instead of for 5 a pre-existing condition. 6 Under the totality of the circumstances, we hold that there was insufficient 7 evidence that Employer knew that Worker was seeking medical treatment because 8 Worker had hurt his back in a work-related accident. See Urioste v. Sideris, 107 N.M. 9 733, 735 , 764 P.2d 504, 506 (Ct. App. 1988) (“The determination of whether the 10 employer had actual knowledge is made from a consideration of the totality of the 11 facts and circumstances.”). We therefore affirm the WCJ’s determination that 12 Employer did not have actual knowledge of a compensable injury. 13 Compensable Injury 14 Worker also argues that the WCJ erred in concluding that Worker did not 15 sustain a compensable injury on August 27, 2008. [DS 8] Worker continues to argue 16 that he offered uncontradicted medical evidence that his injury was caused by the 17 work-related accident on August 27, 2008. [MIO 2-6] We continue to disagree. 18 As the WCJ discussed, the medical history in this case was substantially 19 inconsistent. [RP 72] Worker had been seeing a chiropractor for hip pain prior to the [5] 1 incident in which he drove Employer’s truck into a field of sand. [DS 5] Worker 2 denied injury immediately after the incident. [RP 88] Worker complained of hip pain 3 before and after the incident. [RP 73] On September 5, 2008, Worker sought 4 treatment for back pain from his chiropractor and a physician’s assistant. [DS 5-6] 5 Worker contends that the two providers testified that they remembered Worker telling 6 them that his back pain was caused by a work-related accident. [DS 5-6] However, 7 neither provider documented these claims in their medical records at the time of 8 treatment. [RP 72-73] Further, the chiropractor did not remember the specific details 9 about the claimed injury. [DS 6] Instead, the chiropractor recalled a history of a work- 10 related accident in which Worker was pulling a hose. [RP 72] In addition, Worker 11 went to the emergency room at Artesia General Hospital on September 16, 2008, and 12 told the treating physician that he had suffered a back injury at home. [RP 88] The 13 first medical record relating the back problems to the motor vehicle accident appeared 14 in January 29, 2009, and was made by a doctor obtained upon the recommendation of 15 Worker’s attorney more than ninety days after Worker initiated litigation to recover 16 workers’ compensation benefits. [RP 73] The doctor testified that in his opinion 17 Worker suffers from a degenerative condition of the lower back, which was 18 aggravated as a result of a work incident. [RP 72, 89] [6] 1 In concluding that there was insufficient evidence that the motor vehicle 2 incident was the cause of Worker’s back complaints, the WCJ found that Worker 3 suffered from a pre-existing condition, that he denied he was injured at the time of the 4 incident, and that the motor vehicle was not damaged in the incident. [RP 88] The 5 WCJ noted that he did not find it credible that Worker’s chiropractor and physician’s 6 assistant could accurately recall conversations with Worker that took place six to nine 7 months earlier when there was nothing in the medical records about a work-related 8 injury near the time of the incident. [RP 73] In fact, the chiropractor’s recollection of 9 a work-related accident did not concern a motor vehicle incident. [RP 72] In addition, 10 the WCJ noted that the first mention of a work-related injury in the medical records 11 was not made until January 29, 2009, after litigation had started. [RP 73] Given the 12 substantial delay in recording and relating the motor vehicle incident to back and leg 13 pain, and the alternate incident reported in the medical records at Artesia General 14 Hospital, the WCJ concluded that there was insufficient evidence that the incident was 15 the cause of Worker’s back complaints. [RP 73] Under the circumstances, we are not 16 persuaded that the WCJ erred. We cannot fault the WCJ for giving little weight to 17 testimony of Worker’s treatment providers in view of the lack of record documenting 18 the incident at issue and the contradictory medical report from Artesia General 19 Hospital. Although Worker claims that the doctor at the hospital could not testify [7] 1 about causation, [MIO 5] the medical record from the visit documented that Worker 2 reported an injury that occurred at home. 3 For these reasons, we are not persuaded that the uncontradicted medical 4 evidence rule applies here. See Bufalino v. Safeway Stores, Inc., 98 N.M. 560, 565 , [5] 650 P.2d 844, 849 (Ct. App. 1982) (stating that an appellate court will not disturb a 6 WCJ’s resolution of conflicting medical testimony regarding causation). There was 7 evidence that Worker suffered a pre-existing condition and was receiving treatment 8 for hip pain prior to the incident. [RP 72-73] The only documented evidence in the 9 medical records about the cause of injury near the time of the accident indicated that 10 Worker suffered an injury at home. [RP 73] The first medical record relating the back 11 problems to the motor vehicle accident did not appear until January 29, 2009, several 12 months after the litigation had started. [RP 73] Under these circumstances, we are not 13 persuaded that the WCJ erred in concluding that the evidence about the cause of the 14 injury was not uncontradicted or that Worker had not met his burden of demonstrating 15 causation. 16 CONCLUSION 17 We affirm. [8] 1 IT IS SO ORDERED. [2] 3 CYNTHIA A. FRY, Chief Judge 4 WE CONCUR: [5] 6 ROBERT E. ROBLES, Judge [7] 8 TIMOTHY L. GARCIA, Judge