Dickens v. Rush

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DEAN DICKENS, 3 Worker-Appellee, 4 v. NO. 32,016 5 RUSH TRUCK CENTERS OF 6 NEW MEXICO, INC. and 7 HARTFORD INSURANCE 8 CO. OF THE MIDWEST, c/o 9 SPECIALTY RISK SERVICES, 10 Employer/Insurer-Appellant. 11 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 12 David L. Skinner, Workers’ Compensation Judge 13 Michael F. Hacker 14 Albuquerque, NM 15 for Appellee 16 Allen, Shepherd, Lewis, Syra & Chapman, P.A. 17 Kimberly A. Syra 18 Lindsay E. Ruska 19 Albuquerque, NM 20 for Appellant 1 MEMORANDUM OPINION 2 KENNEDY, Judge. 3 Rush Truck Centers of New Mexico, Inc. and Hartford Insurance Co. of the 4 Midwest, c/o Speciality Risk Services (collectively, Employer) appeal from the 5 Workers’ Compensation Judge’s (WCJ) ruling that Dean Dickens (Worker) is entitled 6 to medical benefits and temporary disability benefits. [RP Vol.II/259] Our notice 7 proposed to affirm, and Employer filed a memorandum in opposition. We remain 8 unpersuaded by Employer’s arguments and therefore affirm. 9 In Issues 1 and 2, Employer continues to argue that Worker failed to give 10 adequate notice of a work-related compensable injury. See NMSA 1978, 11 § 52-1-29(A) (1991) (providing that workers “shall give notice in writing to [their] 12 employer of the accident within fifteen days after the worker knew, or should have 13 known, of its occurrence”). Employer maintains that Worker had notice of a work- 14 related accident by December 10, 2008, the date that Dr. Valley-Mahomed’s records 15 indicate that Worker wanted to pursue a workers’ compensation claim in regards to 16 his lung disease. [DS 4; RP 232, 235; MIO 2-3] Employer accordingly argues that 17 the fifteen-day time frame for giving notice ran from December 10, 2008, rather than 18 March 29, 2010, and that Worker’s notice [RP 263; DS 7] was therefore untimely. — 2 — 1 As provided in our notice, although Worker in December of 2008 may have 2 suspected that his pulmonary condition was in some manner related to his work [MIO 3 2], every healthcare provider (HCP) that examined, evaluated, and treated Worker 4 between roughly June 11, 2008, and March 29, 2010, informed Worker that his 5 pulmonary condition was not caused by or related to any workplace exposures. [RP 6 258, 262] Given this, we agree with the WCJ that during this time frame it would be 7 unreasonable to ascribe knowledge (as opposed to Worker’s suspicion) to Worker 8 relating his pulmonary condition and workplace exposure when the doctors 9 themselves had not yet made the connection. See Sedillo v. Levi-Strauss Corp., 98 10 N.M. 52 , 54, 644 P.2d 1041, 1043 (Ct. App. 1982) (recognizing that a worker is not 11 charged with medical knowledge “which apparently transcends that possessed by the 12 attending physician” (internal quotation marks and citation omitted)). Instead, we 13 agree with the WCJ that Worker knew or reasonably should have known that his lung 14 condition was the result of work on March 29, 2010, when Dr. Sood first related his 15 lung condition to workplace exposures. [RP 258, 261, 263] Because Worker had 16 provided Employer with both actual and written notice that he had suffered a 17 compensable injury on February 4, 2009, [RP 258, 263; DS 7] we agree that Worker 18 satisfied the fifteen-day notice requirement of Section 52-1-29(A). Thus, under our 19 whole record standard of review as to the timeliness of the notice, see Flint v. Town — 3 — 1 of Bernalillo, 118 N.M. 65, 67 , 878 P.2d 1014, 1016 (Ct. App. 1984), we affirm the 2 WCJ’s ruling that Worker gave adequate notice of a work-related compensable injury. 3 In Issue 3, Employer continues to argue that the WCJ erred in failing to make 4 a specific finding regarding whether Worker was credible when the medical testimony 5 was based on Worker’s statements. [DS 7-9; MIO 3] As we explained in our notice, 6 although the WCJ did not make a specific enumerated finding regarding Worker’s 7 credibility, [RP 260-64] the WCJ did in the body of the compensation order 8 specifically state that “[m]y overall sense was that Worker was a credible witness 9 during the formal hearing process.” [RP 255] In our view, this satisfies any 10 requirement, to the extent even required [MIO 4] that the WCJ specifically assess 11 Worker to be a credible witness. We note further that, while the WCJ acknowledged 12 that “it is impossible to reconcile the various histories Worker has provided to the 13 [HCPs],” [RP 255] the WCJ referenced Worker’s testimony that he suffers from 14 dissociative identity disorder as an explanation for inconsistencies in the histories 15 Worker provided to his HCPs. Under our whole record standard of review, see 16 Easterling v. Woodward Lumber Co., 112 N.M. 32, 37 , 810 P.2d 1252, 1257 (Ct. App. 17 1991), we do not disturb WCJ’s assessment of the evidence and of Worker’s 18 credibility. — 4 — 1 In Issue 4, Employer continues to argue that the WCJ erred in determining that 2 Worker’s lung condition was causally related to his work. [DS 8; MIO 5-6] See 3 generally NMSA 1978, § 52-1-28(B) (1987) (holding that causal connection between 4 accident and disability must be shown by expert testimony of a health care provider). 5 The issue of causation is a factual question which is determined by the WCJ in 6 workers’ compensation cases. Ortiz v. Overland Express, 2010-NMSC-021, ¶ 24 , 148 7 N.M. 405 , 237 P.3d 707 . We review the factual findings of the WCJ utilizing a whole 8 record standard of review. Id. While Drs. Porter and Fisher did not believe that 9 Worker’s condition was causally related to his work, [RP 254, 256] it was within the 10 WCJ’s prerogative to instead rely on Dr. Sood’s opinion that Worker’s pulmonary 11 condition was causally related to his work. [RP 254] See Bufalino v. Safeway Stores, 12 Inc., 98 N.M. 560, 565 , 650 P.2d 844, 849 (Ct. App. 1982) (stating that an appellate 13 court will not disturb a WCJ’s resolution of conflicting medical testimony regarding 14 causation). We accordingly affirm the WCJ’s determination that Worker’s condition 15 was causally related to his work. 16 In conclusion, we affirm. 17 IT IS SO ORDERED. 18 _______________________________ 19 RODERICK T. KENNEDY, Judge — 5 — 1 WE CONCUR: 2 ___________________________ 3 JAMES J. WECHSLER, Judge 4 ___________________________ 5 TIMOTHY L. GARCIA, Judge — 6 —