Davis v. Los Alamos National Laboratory

775 P.2d 1304, 108 N.M. 587
CourtNew Mexico Court of Appeals
DecidedMarch 30, 1989
Docket10398, 10443
StatusPublished
Cited by13 cases

This text of 775 P.2d 1304 (Davis v. Los Alamos National Laboratory) 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
Davis v. Los Alamos National Laboratory, 775 P.2d 1304, 108 N.M. 587 (N.M. Ct. App. 1989).

Opinion

OPINION

ALARID, Judge.

Davis (claimant) appeals the compensation order of the Workers’ Compensation Division denying medical benefits for a hot tub installed in his home and awarding attorney fees. Los Alamos National Laboratory (LANL) and its insurance company (employer) cross-appeal that portion of the order finding they are not entitled to reimbursement from the Subsequent Injury Fund (the Fund). We reverse the award of attorney fees and affirm the compensation order of the division.

Claimant slipped and fell while at work on March 15, 1983. The resulting back pain was an aggravation of a preexisting condition. Employer paid total disability benefits and continues to do so. On January 12,1987, claimant filed a workers’ compensation complaint seeking reimbursement for medical expenses: captain’s chairs installed in his truck and a hot tub installed in his home. Employer denied that these expenses were reasonable or medically necessary. The recommendation of the informal hearing officer recommended that the employer pay one-half the cost of the captain’s chairs and one-third the cost of the hot tub. Claimant rejected and employer accepted the recommended solution.

Employer sought to implead the Fund and on May 4, 1987, a complaint was filed seeking apportionment of disability benefits against the Fund. After a formal hearing, the hearing officer found that the captain’s chairs were a reasonable and necessary medical expense and that the hot tub was unreasonable and medically unnecessary. The hearing officer also found that employer had not sought an expeditious determination of the Fund’s liability. He concluded claimant was entitled to expenses for the chairs but not for the hot tub and employer was not entitled to apportionment from the Fund because of the equitable doctrines of laches and waiver.

THE APPEAL

Medical Benefits

Medical treatment for which payment is sought must be shown to be reasonably necessary. NMSA 1978, § 52-1-49; Cardenas v. United Nuclear Homestake Partners, 97 N.M. 46, 636 P.2d 317 (Ct.App.1981). Claimant has the burden of showing that the expenses were both reasonable and necessary. See DiMatteo v. County of Dona Ana, 104 N.M. 599, 725 P.2d 575 (Ct.App.1985). A bill for medical services is prima facie proof of reasonableness and necessity. Baca v. Bueno Foods, 108 N.M. 98, 766 P.2d 1332 (Ct.App.1988). However, we will not hold that in this case, where there was testimony that a less expensive alternative would be sufficient, the hearing officer’s finding rejecting the more expensive equipment is unsupported.

Although claimant cites numerous out-of-state authorities for his contention that he is entitled to reimbursement for expenses for the hot tub, we have often found that out-of-state authority in the workers’ compensation area is not persuasive because of the differences in the workers’ compensation statutes. See Security Ins. Co. of Hartford v. Chapman, 88 N.M. 292, 540 P.2d 222 (1975). Moreover, those cases cited by claimant support the notion that medical costs must be shown to be reasonable and necessary. See City and County of Denver v. Industrial Comm’n, 682 P.2d 513 (Colo.App.1984); City of Miami v. Harris, 452 So.2d 115 (Fla.App.1984); Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla.App.1981). The question is whether there is substantial evidence in the record as a whole to support the hearing officer’s finding that the hot tub was medically unnecessary and unreasonable. See Tallman v. ABF, 108 N.M. 124, 767 P.2d 363 (Ct.App.1988); Graham v. Presbyterian Hosp. Center, 104 N.M. 490, 723 P.2d 259 (Ct.App.1986).

In this case, claimant’s treating physician, Dr. Turner, testified that he wrote a prescription (Defendant’s Exhibit 16) recommending purchase of a hot tub. He qualified his testimony by adding that an attachment for claimant’s bath tub would be sufficient if claimant could immerse his body in the tub. In his deposition, Dr. Turner had stated that claimant had phoned and wanted a Jacuzzi. Dr. Turner further stated that it was medically indicated to make claimant feel better, primarily for psychological reasons.

Dr. Zeigler, a physician for LANL, testified by deposition that a hot tub was medically indicated for claimant because it would make him feel relaxed. However, he stated that claimant could have done just as well with a Jacuzzi attachment for his bathtub. Dr. Ziegler also testified in person that the hot tub was “medically indicated” but that less expensive, reasonable alternatives were available.

Claimant testified that the hot tub gave him a feeling of weightlessness that relieved some of his back pain over a short period of time. Claimant also testified that he asked Dr. Turner to prescribe a hot tub for him.

We will not substitute our judgment for that of the division hearing officer. After reviewing the record as a whole, we determine whether there is evidence that reasonably supports the conclusion. See Tallman v. ABF. Based on the testimony set out above, it was reasonable for the hearing officer to have found that the hot tub was unnecessary and unreasonable. Therefore, the findings of the hearing officer regarding the hot tub are supported by substantial evidence in the record as a whole.

We do not consider employer’s argument regarding the award for the installation of the captain’s chairs in claimant’s truck. Having requested no findings on this issue, employer may not now contest the sufficiency of the evidence supporting the award. See Pedigo v. Valley Mobile Homes, Inc., 97 N.M. 795, 643 P.2d 1247 (Ct.App.1982).

Likewise, we do not consider employer’s arguments regarding whether claimant was barred from relief because he did not request or give notice to insurer regarding the purchase of the hot tub and captain’s chairs. This issue was not raised below; therefore, we will not consider it. See SCRA 1986, 12-216; Woolwine v. Furr’s, Inc., 106 N.M. 492, 745 P.2d 717 (Ct.App.1987).

Attorney Fees

Claimant argues that the award of attorney fees was too low. Attorney fees in this case are governed by NMSA 1978, Section 52-1-54 (Orig.Pamp.). Under this law, if an amount is offered in writing thirty days or more prior to trial and claimant rejects the offer and subsequently recovers a larger amount at trial, then attorney fees for claimant’s attorney are to be fixed in an amount deemed to be reasonable and proper. § 52-l-54(D).

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Bluebook (online)
775 P.2d 1304, 108 N.M. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-los-alamos-national-laboratory-nmctapp-1989.