Cowan v. UNM

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 KELLY COWAN, 8 Worker-Appellant, 9 v. NO. 30,555 10 UNIVERSITY OF NEW MEXICO and 11 RISK MANAGEMENT, 12 Employer/Insurer-Appellees. 13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 14 Juanita Roibal-Bradley, Workers’ Compensation Judge 15 LeeAnn Ortiz 16 Albuquerque, NM 17 for Appellant 18 French & Associates, P.C. 19 Katherine E. Tourek 20 Albuquerque, NM 21 for Appellees 22 DECISION 23 GARCIA, Judge. 1 Appellant Kelly Cowan (Worker) appeals the Workers’ Compensation 2 Administration’s denial of workers’ compensation benefits for an injury allegedly 3 sustained while Worker was employed by the University of New Mexico (UNM). 4 Worker argues two issues on appeal: (1) the workers’ compensation judge (WCJ) 5 erred in concluding that Worker had settled her workers’ compensation claim by 6 entering into an agreement and release with UNM related to her Equal Employment 7 Opportunity Commission (EEOC) claim; and (2) the WCJ erred in concluding that 8 Worker’s injury was either a new injury or an aggravation of the injury she sustained 9 while working for UNM. We affirm the WCJ’s decision denying worker’s 10 compensation benefits based upon its determination that Worker’s injury was either 11 a new injury or an aggravation of the injury that Worker sustained while working for 12 UNM. Because we affirm on this ground, we do not reach the issue of whether 13 Worker settled her workers’ compensation claim by entering into an agreement and 14 release with UNM. 15 FACTUAL BACKGROUND 16 Worker was hired by UNM in October 2006 as a telephone triage nurse. 17 Worker’s duties involved answering telephone calls from clients using a phone 18 headset, soliciting information regarding their symptoms, entering demographics into 19 the computer system, selecting positive indicators in the computer system, and [2] 1 providing nursing assessments. 2 On October 10, 2007, Worker reported an injury to UNM involving pain in her 3 right hand, wrist, forearm, and elbow while typing and doing other computer-related 4 work. It is undisputed that UNM directed Worker to seek treatment with Dr. Phillip 5 Wagner and that Dr. Wagner diagnosed Worker with tendinitis that was causally 6 related to her work for UNM. Employee was placed on work restrictions on October 7 11, 2007, and Dr. Wagner reported that Worker’s injuries gradually improved over 8 time. On November 13, 2007, Dr. Wagner referred Worker to Dr. Barrie Ross, who 9 diagnosed Worker with tendinitis and carpal tunnel syndrome, which Dr. Ross opined 10 were both directly and causally related to the work-related injury on October 10, 2007. 11 On April 2, 2008, Dr. Ross reported that Worker’s symptoms were improving and 12 recommended an orthopedic consultation regarding Worker’s right wrist pain. 13 On April 1, 2008, Employee acquired a second job as a part-time nurse for Su 14 Vida Services, Inc. (Su Vida). Worker’s duties included providing nursing support, 15 performing assessments, and developing healthcare plans. Worker testified that she 16 worked up to twenty hours per week and that the job involved minimal computer- 17 related work. 18 As a result of Dr. Ross’s referral for an orthopedic consultation, Worker was 19 treated by Dr. Donald Vichick from April 23, 2008 through April 15, 2009. It is [3] 1 undisputed that Dr. Vichick diagnosed Worker with extensor tenomyalgia/tendinosis 2 (tennis elbow) of the right elbow and forearm and causally related those injuries to her 3 work at UNM. Dr. Vichick also diagnosed Worker with mild carpal tunnel syndrome, 4 but opined that the carpal tunnel syndrome was not work-related. Dr. Vichick testified 5 that on June 18, 2008, Worker’s right elbow was pain-free most of the time, her 6 shoulder was asymptomatic, numbness and tingling had disappeared, a test for 7 thoracic outlet syndrome was negative, and Worker had full painless motion of her 8 wrists. 9 UNM did not continue Worker’s term of employment that ended on June 30, 10 2008. Employee subsequently filed an EEOC claim against UNM, and the parties 11 ultimately entered into an agreement and release of “any and all claims” arising out 12 of her employment with UNM on October 24, 2008. 13 In addition to her continuing employment with Su Vida, Worker obtained 14 employment with FoneMed North America, Inc. (FoneMed) on June 24, 2008, and 15 worked her first independent shift on August 8, 2008. Worker testified that she works 16 twenty hours per week as a telephone triage nurse and that her job description at 17 FoneMed is similar to her prior job description with UNM. Worker further testified 18 that her job at FoneMed involves less computer work than her job with UNM because 19 the software is more efficient and data entry is minimal. [4] 1 Dr. Vichick testified that on August 7, 2008, Worker reported that “[a]fter using 2 a touch pad mouse for two weeks at her computer, . . . she developed increased pain 3 in the extensor muscles of the forearm, but it settled down somewhat when she 4 changed computer activity.” Dr. Vichick further testified that Worker reported that 5 “her right elbow was okay at rest and with light activity but was painful, again, with 6 strenuous activity, such as stirring while cooking, doing her hair, or prolonged use on 7 the computer if she didn’t take a break.” Similarly, Dr. Vichick testified that on 8 October 1, 2008, Worker continued to improve but had forearm and elbow pain when 9 “[w]orking more than five hours with her keyboard or too many days per week.” 10 Worker had full painless range of motion of the right elbow, right forearm, and right 11 wrist, and she was released to regular work duty with no restrictions at that time. On 12 February 18, 2009, Worker reported that she was really busy at work, but that all of 13 her symptoms were improving and that she only experienced pain when participating 14 in certain strenuous activities that were not work-related. 15 Dr. Vichick testified that on April 15, 2009, Worker had reached maximum 16 medical improvement (MMI) based upon a reasonable medical probability. Dr. 17 Vichick further testified that Worker’s forearm, wrist, and elbow injuries had resolved 18 based upon a reasonable medical probability and that she reported no problems doing 19 her work. When Dr. Vichick last treated Worker on April 15, 2009, he did not feel [5] 1 that Worker needed steroid injections, surgery, platelet-rich plasma injections, or any 2 future medical treatment based upon a reasonable medical probability. He further 3 testified that had a functional capacity evaluation been performed at that time, Worker 4 would likely have had a zero impairment rating based upon a reasonable medical 5 probability. 6 On October 14, 2009, Worker sought treatment from Dr. Miguel Pupiales for 7 pain in her right arm, forearm, and wrist. On that date, Worker “state[d] that the pain 8 continued to progress a[s] time went on, in particular since she had [to] switch to her 9 new job and that her new job required her to use the computer keyboard much more 10 frequently than her previous job.” Dr. Pupiales testified that he did not know to which 11 job Worker was referring, but that Worker told him that the repetitive motions of her 12 new job were causing the increase in symptoms. After listening to excerpts from 13 Worker’s deposition in December 2009 regarding her later increase in symptoms, Dr. 14 Vichick testified that based upon a reasonable medical probability, this increase in 15 symptoms was an aggravation of her previous problems. 16 PROCEDURAL HISTORY 17 On May 28, 2009, Worker filed a workers’ compensation claim against UNM, 18 requesting temporary total disability, permanent partial disability, and attorney fees. 19 A mediation conference was held on September 22, 2009, but the parties were unable [6] 1 to reach a settlement. 2 On April 15, 2010, the parties entered a pre-trial order and stipulated that 3 Worker suffered a compensable injury to her right elbow as a result of a work-related 4 accident on October 10, 2007. However, the parties disagreed regarding whether 5 Worker continued to suffer from this injury or whether Worker’s claims for tendinitis 6 of the right wrist, carpal tunnel syndrome, tennis elbow, and pronator syndrome were 7 related to the work-related accident on October 10, 2007. Additionally, the parties 8 disagreed regarding whether Worker was entitled to disability benefits, future medical 9 benefits, or repayment of mileage to and from medical appointments. The parties 10 stipulated that UNM had paid past medical bills for Worker’s treatment with Dr. 11 Wagner, Dr. Ross, Dr. Vichick, her initial visit with Dr. Pupiales, and for physical 12 therapy. UNM had not paid for subsequent visits to Dr. Pupiales. 13 Trial occurred on April 20, 2010, and both parties subsequently submitted 14 proposed findings of fact and conclusions of law. On June 24, 2010, the WCJ entered 15 an order denying Worker’s claim for workers’ compensation benefits. The WCJ’s 16 decision was based upon two alternative grounds: (1) Worker settled her workers’ 17 compensation claim by entering into an agreement and release with UNM; and (2) 18 even if Worker did not settle her claim, medical evidence established that Worker’s 19 injuries were not related to her employment with UNM but were instead a new injury [7] 1 or aggravation. Worker filed a timely appeal. 2 DISCUSSION 3 Worker argues that the WCJ erred in denying her claim for workers’ 4 compensation benefits based upon the determination that Worker’s injury was either 5 a new injury or an aggravation of the injury she incurred while working for UNM. 6 “We review workers’ compensation orders using the whole record standard of 7 review.” Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10 , 142 N.M. 605 , 168 P.3d 8 177 . Under the whole record standard, “we must consider all evidence bearing on the 9 findings, favorable or unfavorable, to determine if there is substantial evidence to 10 support the result.” Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13 , 137 11 N.M. 497 , 113 P.3d 320 (internal quotation marks and citation omitted). “Where the 12 testimony is conflicting, the issue on appeal is not whether there is evidence to support 13 a contrary result, but rather whether the evidence supports the findings of the trier of 14 fact.” Id. (internal quotation marks and citation omitted). “We may not substitute 15 [our] judgment for that of the administrative agency, and we view all evidence, 16 favorable and unfavorable, . . . in the light most favorable to the agency’s decision.” 17 Leonard, 2007-NMCA-128, ¶ 10 (alteration in original) (internal quotation marks and 18 citation omitted). “We will affirm the agency’s decision if, after taking the entire [8] 1 record into consideration, there is evidence for a reasonable mind to accept as 2 adequate to support the conclusion reached.” Id. (internal quotation marks and 3 citation omitted). 4 “[T]he employer at the time of the disability is responsible for compensation for 5 preexisting non-disabling injuries aggravated by subsequent work activities.” Jouett, [6] 2005-NMSC-015 , ¶ 20. Moreover, the date of the disability arising from an accident, 7 rather than the date of the accident itself, is the determinative date for establishing 8 liability. Salinas-Kendrick v. Mario Esparza Law Office, 118 N.M. 164, 165-66 , 879 9 P.2d 796 , 797-98 (Ct. App. 1994). Consequently, “[w]hen a disability develops 10 gradually, or when it [occurs] as the result of a succession of accidents, the insurance 11 carrier covering the risk at the time of the most recent injury or exposure bearing a 12 causal relation to the disability is usually liable for the entire compensation.” Jouett, [13] 2005-NMSC-015, ¶ 24 (internal quotation marks and citation omitted). 14 In Jouett, the worker sustained a work-related injury to his shoulder while 15 employed by Growney Equipment, and Growney Equipment paid for medical 16 treatment but provided no disability benefits since the worker was not disabled at that 17 time. Id. ¶ 3. The worker aggravated his initial injury while working for two 18 subsequent employers and ultimately became disabled while working for Big Dog. Id. 19 ¶ 23. Although the Court recognized that the worker continued to experience pain [9] 1 between his initial injury and when he became disabled, the Court determined that Big 2 Dog was potentially liable for the full compensation award because Big Dog was the 3 worker’s employer at the time of the aggravation of his injury resulting in disability. 4 Id. ¶¶ 3-7, 29. The Court further determined that Growney Equipment satisfied its 5 obligation to worker by providing medical treatment since the worker was not 6 disabled at that time. Id. ¶ 23. 7 Relying upon the reasoning in Jouett, we conclude that substantial evidence 8 supports the WCJ’s decision denying Worker’s claim against UNM based upon its 9 determination that Worker aggravated her initial injury through her subsequent 10 employment with Su Vida and/or FoneMed. It is undisputed that Worker sustained 11 a work-related accident at UNM on October 10, 2007, and that UNM paid for 12 Worker’s medical treatment until after Dr. Vichick determined that Worker had 13 reached MMI. The record also supports the WCJ’s determination that Worker had 14 fully recovered from the accident by April 15, 2009, since Dr. Vichick testified that 15 Worker’s injuries had resolved, Worker had reached MMI, and Worker would have 16 had a zero impairment rating at that time, based upon a reasonable medical 17 probability. Additionally, Dr. Vichick did not anticipate that Worker would need any 18 further medical treatment when he last treated her on April 15, 2009. Consequently, 19 the record supports the WCJ’s determination that Worker had reached MMI on April [10] 1 15, 2009, and that Worker had no disability resulting from her work-related injury on 2 October 10, 2007. 3 Substantial evidence also supports the WCJ’s determination that Worker’s 4 injury was aggravated by her subsequent employment with Su Vida and/or FoneMed. 5 Worker began working as a part-time nurse for Su Vida in 2008, where she performed 6 minimal computer work. Additionally, Worker acquired a second job as a part-time 7 telephone triage nurse with FoneMed on June 24, 2008, performing computer-related 8 tasks that were similar to those performed in her previous employment at UNM. On 9 August 7, 2008, Worker reported to Dr. Vichick that she developed increased pain 10 “[a]fter using a touch pad mouse for two weeks at her computer.” Similarly on 11 October 1, 2008, Worker reported that she experienced pain when “[w]orking more 12 than five hours with her keyboard or too many days per week.” Finally, on October 13 14, 2009, when Worker sought additional treatment from Dr. Pupiales after initially 14 reaching MMI, Worker “state[d] that the pain continued to progress a[s] time went on, 15 in particular since she had [to] switch to her new job and that her new job required her 16 to use the computer keyboard much more frequently than her previous job.” Dr. 17 Pupiales testified that Worker told him that the repetitive motions of her “new job” 18 were causing the increase in symptoms. Furthermore, after Dr. Vichick heard 19 testimony regarding Worker’s increase in symptoms following her initial release from [11] 1 treatment, Dr. Vichick testified that based upon a reasonable medical probability, this 2 increase in symptoms was an aggravation of her previous problems. Worker argues 3 that the “new job” causing the increased symptoms was UNM rather than FoneMed. 4 Substantial evidence, however, supports the WCJ’s determination that the “new job” 5 was FoneMed since at the time the statements regarding the “new job” were made in 6 the medical records, Worker was no longer working for UNM and had recently started 7 a new job working with FoneMed. Consequently, substantial evidence supports the 8 WCJ’s determination that Worker’s increased symptoms and alleged disability 9 resulted from an aggravation of her prior injury through her new employment with 10 FoneMed and/or Su Vida. 11 Worker argues that there is no evidence of any new injury or aggravation 12 because she did not sustain a new injury and no new accident was reported to her 13 subsequent employers. However, “our precedent does not require a discrete 14 ‘accident,’ in the traditional sense, if employment activity itself aggravates a 15 preexisting injury and results in disability.” Jouett, 2005-NMSC-015, ¶ 27 . If “the 16 stress of labor aggravates or accelerates the development of a preexisting infirmity 17 causing an internal breakdown of that part of the structure, a personal injury by 18 accident does occur.” Id. ¶ 28 (internal quotation marks and citation omitted). “Under 19 these circumstances, where a work-related accidental injury is aggravated by [12] 1 continued employment activities but the worker continues normal employment under 2 pain resulting in later disability, . . . the time and place of the ‘accident,’ for purposes 3 of ‘definiteness and certainty’ . . . is the [later] date the worker became disabled.” Id. 4 (citation omitted). Consequently, despite recurring symptoms , substantial evidence 5 supports the WCJ’s determination that Worker’s continuation of normal employment 6 activities at FoneMed and/or Su Vida caused an aggravation of her original work- 7 related injury despite the lack of a discrete new accident being reported by Worker. 8 We affirm the WCJ’s denial of Worker’s claim against UNM for additional 9 workers’ compensation benefits. Similar to Jouett, where the employer at the time of 10 the original work-related accident was not liable for a disability that resulted from an 11 aggravation of that injury while working for a subsequent employer, we conclude that 12 UNM is not liable for Worker’s claim arising from an aggravation of the accident first 13 reported at UNM. Id. ¶ 29. 14 CONCLUSION 15 For the foregoing reasons, we affirm the WCJ’s decision denying Worker’s 16 claim for further worker’s compensation benefits from UNM. 17 IT IS SO ORDERED. 18 ______________________________ 19 TIMOTHY L. GARCIA, Judge [13] 1 WE CONCUR: 2 _________________________________ 3 MICHAEL D. BUSTAMANTE, Judge 4 _________________________________ 5 MICHAEL E. VIGIL, Judge