Blankenship v. Albuquerque

• Court: New Mexico Court of Appeals
• Decided: July 25, 2012
• Docket: 31,960
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JAMES BLANKENSHIP,

3 Worker-Appellant,

4 v. NO. 31,960

5 CITY OF ALBUQUERQUE,

6 Employer/Insurer-Appellee.

7 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 8 Shannon S. Riley, Workers Compensation Judge

9 Dorato & Weems, LLC 10 Derek L. Weems 11 Albuquerque, NM

12 for Appellant

13 Kelly A. Genova, PC 14 Kelly A. Genova 15 Albuquerque, NM

16 for Appellee

17 MEMORANDUM OPINION

18 KENNEDY, Judge. 1 James Blankenship (Worker) appeals from a compensation order denying him

2 benefits. We issued a calendar notice proposing to reverse. The City of Albuquerque

3 (City) has responded with a memorandum in opposition to our calendar notice. We

4 reverse.

5 In this appeal, Worker is challenging the determination of the Workers’

6 Compensation Judge (WCJ) that he is not entitled to benefits for a primary mental

7 impairment. [DS 9] The statutory definition states:

8 “[P]rimary mental impairment” means a mental illness arising 9 from an accidental injury arising out of and in the course of employment 10 when the accidental injury involves no physical injury and consists of a 11 psychologically traumatic event that is generally outside of a worker’s 12 usual experience and would evoke significant symptoms of distress in a 13 worker in similar circumstances, but is not an event in connection with 14 disciplinary, corrective[,] or job evaluation action or cessation of the 15 worker’s employment[.]

16 NMSA 1978, § 52-1-24(B) (1991).

17 In Jensen v. N.M. State Police, 109 N.M. 626, 788 P.2d 382 (Ct. App. 1990),

18 this Court considered what type of event would satisfy Section 52-1-24(B). We

19 observed that the statutory language was substantially similar to the language used in

20 the discussion of post traumatic stress disorder (PTSD) found in the Diagnostic and

21 Statistical Manual of Mental Disorders (DSM). Jensen, 109 N.M. at 629, 788 P.2d

22 at 385. See American Psychiatric Association, Diagnostic and Statistical Manual of

2 1 Mental Disorders (4th ed. 2000). We listed the events described by the DSM as

2 producing PTSD, including rape, assault, military combat, floods, earthquakes, car

3 accidents, airplane crashes, large fires, bombing, torture, and death camps. Jensen,

4 109 N.M. at 629, 788 P.2d at 385. We then held as follows:

5 Section 52-1-24(B) reflects a legislative intent to limit primary 6 impairment to sudden, emotion-provoking events of a catastrophic nature 7 as described [in the DSM description of PTSD] as opposed to gradual, 8 progressive stress-producing causes such as occurred in Candelaria [v. 9 Gen. Elec. Co., 105 N.M. 167, 730 P.2d 470 (Ct. App. 1986] 10 (harassment by supervisor over period of time).

11 Jensen, 109 N.M. at 629, 788 P.2d at 385.

12 Here, the WCJ found that Worker was in an accident in the course and scope

13 of employment. [RP 91] The accident involved a fire. Both Worker’s therapist and

14 the psychologist who conducted the independent medical examination diagnosed

15 Worker as suffering from PTSD. [DS 5-6] The psychologist’s diagnosis was based

16 on the DSM. [DS 6] The WCJ found that Worker suffered PTSD as a result of his

17 accident. Nevertheless, the WCJ denied benefits under Section 52-1-24(B) after

18 finding that the accident would not have evoked significant symptoms of distress in

19 other workers similarly situated. [RP 93-94] In its memorandum in opposition, the

20 City adopts the WCJ’s rationale. However, as Jensen makes clear, Section 52-1-24(B)

21 essentially incorporates the DSM’s definition of PTSD. Given the uncontradicted

22 medical evidence that Worker satisfied this definition, we reject the City’s argument

3 1 that the event was not sufficiently traumatic. If, as the City argues, Worker over-

2 reacted to the incident in question, we believe that the experts would have diagnosed

3 him with an anxiety disorder and not PTSD. Accordingly, we reverse.

4 IT IS SO ORDERED.

5 _______________________________ 6 RODERICK T. KENNEDY, Judge

7 WE CONCUR:

8 _________________________________ 9 MICHAEL D. BUSTAMANTE, Judge

10 _________________________________ 11 TIMOTHY L. GARCIA, Judge