Chavarria v. Basin Moving & Storage

1999 NMCA 032, 976 P.2d 1019, 127 N.M. 67
CourtNew Mexico Court of Appeals
DecidedJanuary 20, 1999
Docket18,704
StatusPublished
Cited by8 cases

This text of 1999 NMCA 032 (Chavarria v. Basin Moving & Storage) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chavarria v. Basin Moving & Storage, 1999 NMCA 032, 976 P.2d 1019, 127 N.M. 67 (N.M. Ct. App. 1999).

Opinion

OPINION

WECHSLER, Judge.

{1} Manuel Chavarria (Worker) appeals the decision of the Workers’ Compensation Judge (WCJ) awarding him benefits based on an impairment rating of 5%. Worker challenges: (1) the assigned impairment rating for Worker’s back injury; (2) the WCJ’s refusal to assign impairment ratings for psychological disorder and chronic pain; (3) the WCJ’s findings allowing reduction of the compensation benefits for reasons of injurious practices; and (4) the WCJ’s exclusion of the testimony of one of Worker’s expert witnesses. For the reasons discussed below, we reverse the WCJ’s decision and remand for further proceedings.

Facts

{2} Worker suffered a lower back injury in August 1993 while employed at Basin Moving & Storage (Employer). Dr. Peter Saltzman, an orthopedic surgeon and Worker’s treating physician, operated on Worker to repair a herniated disc on February 24, 1994. Dr. Saltzman performed a fusion of the area and inserted permanent metal instrumentation. Worker initially did well following the operation, noting decreased pain. Several months after the surgery, however, Worker complained of renewed and increased pain in his lower back and left leg. In late 1994 and early 1995, doctors took x-rays and performed several other tests which revealed no obvious problems or evidence of acute or chronic radiculopathy (disease of the spinal nerve roots) or other nerve injury.

{3} Dr. Saltzman referred Worker to Dr. Robert Sherrill, a clinical psychologist, for a psychological study to determine whether there was a stress component to Worker’s symptoms. Dr. Sherrill examined Worker on March 13, 1995 and concluded that Worker suffered from a mood disorder, pain disorder, and mixed neuroses, and that he was not a malingerer. He additionally concluded that psychological issues were affecting Worker’s physical recovery, and recommended conservative medical intervention (no additional surgery or invasive procedures) and antidepressants. Dr. Saltzman rejected Dr. Sherrill’s recommendation and performed a second operation on March 25, 1995. At that time, Dr. Saltzman removed the instrumentation inserted during the 1994 surgery and a bone spur. In April 1996, at the request of Dr. Anthony Chiodo, one of Worker’s treating physicians, Dr. Sherrill examined Worker again following the second operation. After that examination, Dr. Sherrill reached the same conclusions he had made after his first examination of Worker.

{4} Following the second operation, Dr. Saltzman referred Worker to Dr. Glen Kelley, a rehabilitation physician, for an evaluation and an impairment rating. On August 15, 1995, Dr. Kelley determined that Worker had a lumbar injury requiring fusion resulting in radiculopathy, and had reached maximum medical improvement (MMI). Dr. Kelley concluded that Worker had a 25% whole-person impairment relying on Table 72 of the American Medical Association, Guides to the Evaluation of Permanent Impairment § 3.3g, at %io (4th ed. 1993) (AMA Guides). Dr. Saltzman agreed with this assessment. Dr. Kelley had also examined and performed nerve and motor tests on Worker at Dr. Saltzman’s request prior to Worker’s second surgery. His findings from these tests were normal.

{5} After thé second operation Dr. Saltzman also referred Worker to Dr. Keith Harvie, a psychiatrist, and Dr. Michael Dempsey, a board certified psychiatrist, for an independent medical evaluation. They concluded that Worker had reached MMI on October 3, 1995, and also assigned Worker an impairment rating of 25%. Dr. Dempsey stated that he and Dr. Harvie took psychological injury and chronic pain into account when they assigned the impairment rating. Dr. Dempsey testified that the reason Worker was not doing better was due to his “subjective complaint of pain and weakness for which there’s no real strong evidence.” Dr. Dempsey believed that the 25% impairment rating as assessed by Dr. Harvie was reached by evaluating the chronic pain issues that he had considered in his psychological evaluation.

{6} Dr. Chiodo, board certified in physical medicine and rehabilitation, examined Worker once following his first operation on March 13, 1995, and later treated Worker from April 1996 to October 1996 at Dr. Saltzman’s request. Dr. Chiodo testified that his first examination was for purposes of providing information to the New Mexico Disability Determination Unit to evaluate Worker’s claim for state disability benefits. He could find no physical or neurological reason for Worker’s minor physical weakness or pain. He thought that the degree of functional loss experienced by Worker was out of proportion with the objective findings from both diagnostic tests and the physical examination.

{7} Dr. Chiodo agreed with Dr. Kelley that Worker reached MMI on August 15, 1995, but he did not agree with Dr. Kelley that Worker should be assigned an impairment rating of 25%. He testified that there was no documentation in Dr. Saltzman’s notes which indicated that Worker had motion segment instability. Dr. Chiodo also found radicular signs but did not find in the notes or documents in Worker’s medical record that Worker had true radiculopathy— sensory, reflex, and motor loss. He stated that true radiculopathy is based upon findings of “[p]inprick loss, strength loss, and reflex loss within the nerve root distribution consistent with ... radiological findings ... or EMG documentation of radiculopathy.”

{8} Dr. Chiodo testified that he did not know the appropriate impairment category under the AMA Guides in which to place Worker because he did not have all of the information from preoperative evaluations and could not say whether Worker met the criteria for radiculopathy. He believed that if Worker did not meet the criteria for radiculopathy he could be classified as low as a 5% impairment rating based upon the AMA Guides. However, if Worker did meet the criteria for radiculopathy, Dr. Chiodo was of the opinion that the appropriate impairment rating would be 10%, because he did not find any documentation of loss of motion segment integrity. He did find that Worker has sustained “significant functional loss,” and that this could cause loss of self-esteem and psychological problems.

{9} Dr. Chiodo additionally testified that Worker’s reliance on a back brace had further limited Worker’s mobility and that Worker’s use of a cane contributed to the worsening of his pain. He did not find any objective need for either the cane or the brace. Although, he also testified that Worker met the t AMA Guides criteria for chronic pain, he noted that additional impairment is added for chronic pain only if “chronic pain symptoms aren’t taken up by the specific injury.” In this case, he stated that the AMA Guides account for chronic pain in the impairment rating for the specific injury. Dr. Saltzman agreed, stating that the 25% impairment rating assigned by Dr. Kelley included a rating for chronic pain.

{10} The WCJ determined that the medical evidence did not support the 25% impairment rating assigned by Dr. Kelley, Dr. Harvie, and Dr. Dempsey. The WCJ found that there was no physical evidence of radiculopathy to support the impairment rating, that Dr. Chiodo appropriately assessed Worker’s impairment rating at 5%, and that Worker was not a credible witness noting that Worker’s physical movements during the hearing were inconsistent with his testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 032, 976 P.2d 1019, 127 N.M. 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavarria-v-basin-moving-storage-nmctapp-1999.