Perea v. Wal-Mart

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JESSIE PEREA, 3 Worker-Appellee, 4 v. No. 32,307 5 WAL-MART DISTRIBUTION 6 CENTER and AMERICAN HOME 7 ASSURANCE CO., 8 Employer/Insurer-Appellant. 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 Shanon S. Riley, Workers’ Compensation Judge 11 Michael J. Doyle 12 Los Lunas, NM 13 for Appellee 14 Hoffman Kelly LLP 15 Michelle D. Lopez 16 McKinney, TX 17 for Appellant 18 MEMORANDUM OPINION 19 SUTIN, Judge. 1 Employer/Insurer appeal from a compensation order. We issued a notice of 2 proposed summary disposition, proposing to affirm. Employer/Insurer have filed a 3 memorandum in opposition. After due consideration, we remain unpersuaded. We 4 therefore affirm. 5 First, Employer/Insurer contends that Worker supplied inadequate notice of the 6 workplace accident. [MIO 2-6] Below, the workers’ compensation judge (WCJ) 7 determined that Worker did not know, nor should he have known, that he had suffered 8 a compensable injury until June 23, 2010. [RP 203-04 (¶¶ 12-13)] The WCJ also 9 determined that Employer/Insurer received timely actual notice on July 8, 2010, when 10 Worker reported the accident to Marvin Glass. [RP 204 (¶ 16)] 11 In the memorandum in opposition, Employer/Insurer attempt to characterize 12 Worker’s report to Mr. Glass as a “casual” conversation or comment [MIO 2, 3-4, 5], 13 which should be regarded as insufficient to constitute actual notice. [MIO 2-6] 14 However, based on the testimony of both Mr. Glass and Worker, the compensation 15 order contains a specific finding that Worker “reported the on the job accident, 16 described how the accident occurred, and explained how the accident injured him” 17 when he spoke with Mr. Glass. [RP 190 (¶ 25)] We acknowledge that 18 Employer/Insurer believe Worker’s testimony should have been rejected, based on 19 omissions, inconsistencies, and other circumstances that Employer/Insurer contend [2] 1 reflect poorly on Worker’s credibility. [MIO 4-5] However, as we previously 2 explained in the notice of proposed summary disposition, we cannot reweigh the 3 evidence on appeal. See Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, ¶ 13 , [4] 123 N.M. 489 , 943 P.2d 136 (observing that this Court “will not reweigh the evidence, 5 even under the whole record standard of review”); Mieras v. Dyncorp, [6] 1996-NMCA-095 , ¶ 15, 122 N.M. 401 , 925 P.2d 518 (observing that it is for the WCJ, 7 as fact-finder, to resolve conflicting evidence). Ultimately, insofar as Worker 8 described both the accident and the resultant harm giving rise to an inference that he 9 thought that he had suffered a compensable injury [RP 190 (¶¶ 25-27), 204 (¶¶ 16- 10 18)], he supplied adequate notice. See generally Grine v. Peabody Natural Res., [11] 2006-NMSC-031, ¶¶ 36-37 , 140 N.M. 30 , 139 P.3d 190 (providing that actual notice 12 must be sufficient to advise an employer of the worker’s belief that he or she has 13 suffered an accidental injury, and further, that a work-related accident caused the 14 injury). We therefore reject Employer/Insurer’s challenge to the WCJ’s 15 determinations relative to the sufficiency of notice. 16 Employer/Insurer also continue to challenge the sufficiency of the evidence to 17 establish that Worker suffered a compensable injury. [MIO 6-9] As we previously 18 described in the notice of proposed summary disposition, Worker’s testimony 19 supplied the requisite support relative to the occurrence of an accident within the [3] 1 course and scope of employment. [RP 187-88] And while Employer/Insurer continue 2 to challenge Worker’s credibility, asserting that the record is “replete with instances 3 of . . . [W]orker contradicting himself” [MIO 8], we remain unwilling to second-guess 4 the WCJ’s evaluation of the testimony. Rodriguez, 1997-NMCA-062, ¶ 13 (observing 5 that this Court “will not reweigh the evidence, even under the whole record standard 6 of review”); Garnsey v. Concrete Inc. of Hobbs, 1996-NMCA-081 , ¶ 20, 122 N.M. 7 195, 922 P.2d 577 (stating that it is for the factfinder to weigh evidence and resolve 8 conflicts). 9 In the memorandum in opposition Employer/Insurer focus on the element of 10 causation. [MIO 6-8] As we explained in our notice, Worker’s authorized health care 11 providers both testified that he had sustained a back injury which, to a reasonable 12 degree of medical probability, was causally related to the workplace accident. [RP 193 13 (¶¶ 58, 60, 62), 205 (¶¶ 26-28)] This supplies the requisite evidentiary support for the 14 WCJ’s determination. See generally NMSA 1978, § 52-1-28(B) (1987) (providing 15 that “where the employer or his insurance carrier deny that an alleged disability is a 16 natural and direct result of the accident, the worker must establish that causal 17 connection as a probability by expert testimony of a health care provider”). We 18 understand Employer/Insurer to contend that this evidence should have been rejected 19 because it was based on faulty information with respect to the date of the accident and [4] 1 of reporting. [MIO 7-8] Specifically, Employer/Insurer note that one of the doctors 2 was under the impression that Worker had provided notice on June 25 rather than July 3 8, 2010 [MIO 7-8], and the other doctor was under the impression that Worker had 4 reported the accident on the day it occurred, which he mistakenly believed was June 5 21 rather than June 22. [MIO 8] However, we fail to see how these de minimis 6 discrepancies could be said to have any bearing on the validity of opinions expressed 7 relative to causation. We are similarly unpersuaded that the absence of cross- 8 reference to medical records or reports relating to Worker’s visits to Presbyterian 9 and/or Concentra suggest material omissions. [MIO 7-8] Contrary to 10 Employer/Insurer’s suggestion [MIO 9], this is not a case in which Worker’s health 11 care providers lacked pertinent information about a prior injury. See generally 12 Sanchez v. Zanio’s Foods, Inc., 2005-NMCA-134 , ¶¶ 12-14, 138 N.M. 555 , 123 P.3d 13 788 (discussing Niederstadt v. Ancho Rico Consol. Mines, 88 N.M. 48 , 536 P.2d 1104 14 (Ct. App. 1975), and observing that “a healthcare provider must be informed about a 15 pertinent prior injury before he or she can render an opinion as to the cause of a 16 subsequent injury”). As a result, we reject Employer/Insurer’s attempt to analogize 17 to cases in which the absence of pertinent historical information has undermined the 18 sufficiency of expert testimony to establish the requisite causal connection between 19 a workplace accident and injury. [5] 1 Accordingly, for the reasons stated in the notice of proposed summary 2 disposition and in this Opinion, we affirm. 3 IT IS SO ORDERED. 4 __________________________________ 5 JONATHAN B. SUTIN, Judge 6 WE CONCUR: 7 _________________________________ 8 MICHAEL D. BUSTAMANTE, Judge 9 _______________________________ 10 CYNTHIA A. FRY, Judge