Denning v. Kalloni, LLC

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 PAMELA K. DENNING, 3 Worker-Appellant, 4 v. NO. 32,566

5 KALLONI, LLC, d/b/a TOMASITA’S, 6 and REPUBLIC UNDERWRITERS 7 INSURANCE COMPANY,

8 Employer/Insurer-Appellees.

9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 David L. Skinner, Workers’ Compensation Judge

11 Gerald A. Hanrahan 12 Albuquerque, NM

13 for Appellant

14 Miller Stratvert P.A. 15 Nathan A. Cobb 16 Dan A. Akenhead 17 Albuquerque, NM

18 for Appellees

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1 MEMORANDUM OPINION 2 KENNEDY, Chief Judge. 3 {1} Pamela Denning (Worker) appeals from the compensation order and the order 4 denying Worker’s motion for reconsideration entered by the Workers’ Compensation 5 Judge (WCJ) in favor of Kalloni, LLC, d/b/a Tomasita’s (Employer), and Republic 6 Underwriters Insurance Company (Insurer). 7 I. BACKGROUND 8 {2} Worker was injured at work on September 16, 2009. She sustained injuries to 9 her head, cervical spine, thoracic spine, lumbar spine, and right hip. Worker became 10 physically unable to work as a result of these injuries, and she has not earned any 11 wages since the accident. She received Worker’s Compensation benefits until the 12 WCJ found that she reached maximum medical improvement (MMI) from her 13 physical injuries. Worker was terminated from work on October 30, 2010, for reasons 14 unrelated to her accident. In 2011, nearly two years after the original accident, 15 Worker was diagnosed with psychological injuries, including depression, anxiety 16 disorder, and pain disorder. The WCJ denied benefits for her psychological injuries, 17 finding that they were not a result of her physical injury at work, but rather were the 18 direct consequence of her termination. Worker filed a motion for reconsideration on 19 the issue of the WCJ’s denial of benefits for her mental injuries on October 12, 2012 20 that was denied. Worker raises three issues on appeal: (1) whether the WCJ erred by

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1 failing to find a causal connection between Worker’s psychological injuries and the 2 work accident; (2) whether the WCJ erred by finding an exception to the 3 uncontradicted medical evidence rule; and (3) whether the WCJ erred by finding that 4 Worker was at MMI for her physical injuries and by not awarding continuing 5 temporary total disability (TTD) benefits for her mental injuries. II. DISCUSSI 6 ON

7 A. The WCJ’s Finding That There Is No Causal Connection Between 8 Worker’s Accident and Her Mental Injuries Is Affirmed

9 {3} Worker argues that the WCJ erred in its determination that there was no causal 10 connection between the accident she sustained at work and her psychological injuries. 11 Employer/Insurer argued, and the WCJ agreed, that Worker’s psychological problems 12 were triggered by her termination from employment and not by her accident at work. 13 For the reasons that follow, the WCJ’s ruling on this issue is affirmed. Factual 14 findings of a WCJ are subject to “[w]hole record review” that contemplates “a canvass 15 by the reviewing court of all the evidence bearing on a finding or decision, favorable 16 and unfavorable, in order to determine if there is substantial evidence to support the 17 result.” Tallman v. ABF (Arkansas Best Freight), 1988-NMCA-091, ¶ 9, 108 N.M. 18 124, 767 P.2d 363. “Substantial evidence on the whole record is such evidence that 19 demonstrates the reasonableness of the administrative decision. . . . We will not . . .

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1 substitute our judgment for that of the agency[.]” Herman v. Miners’ Hosp., 1991- 2 NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d 734. 3 {4} Worker was terminated from her employment on October 30, 2010. The WCJ 4 found that she was a long-term employee of Employer, who rightly considered herself 5 to be a trusted and important member of the very successful restaurant and bar’s 6 management team. Her sense of self-worth was, in no small part, a product of her 7 work ethic and her long-term position. The WCJ also found that Worker’s sense of 8 self-worth was dependent on her employment. The undisputed reason for her 9 termination from employment was a change in management. When this employment 10 was terminated, her depression became debilitating. It hurt her feelings that, despite 11 the new owner of the restaurant being someone whom she had known since he was 12 twelve years old, he did not want Worker to continue as an employee after a nearly 13 thirty-year employment relationship. She told her psychiatrist, Dr. Karl Ray, that her 14 release from work was “like being kicked to the curb.” She cried about the “perceived 15 . . . ill treatment she had received by her former [E]mployer.” On September 28, 16 2011, Worker reported to Dr. Ray that she thought of suicide daily. Dr. Ray noted 17 that Worker “hadn’t said that she thought of [suicide] daily before then[.]” 18 {5} In the time period between Worker’s injury and her termination by Employer, 19 Worker did not need or seek mental health treatment and did not have a mental

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1 impairment. In her deposition, she admits that her depression was manageable up 2 until the point that Employer terminated her employment. Worker’s treatment for 3 psychological problems began at the recommendation of Dr. Belyn Schwartz on 4 February 28, 2011, nearly two years after her accident on September 16, 2009, but 5 only four months after her termination from employment. Worker states that the 6 reason Dr. Schwartz referred her to a psychiatrist was because she “was . . . coming 7 unglued about [her] body being bad, and it didn’t start getting bad until after 8 [Employer] told [her] that another person was coming in with their own people and 9 [she] wouldn’t have a job there anymore.” This visit on February 28, 2011 was the 10 first time in the medical record that Worker complained of suicidal ideation. On her 11 next visit to Dr. Schwartz, Worker was referred to Dr. Ray for psychiatric evaluation 12 and care. Worker states that she felt “betrayed.” She further stated that from the time 13 of the accident, September 2009, to the time of her termination, October 2010, she had 14 been a “little depressed” because her “body was not working right,” but she had come 15 to terms with the fact that it was just an accident, and she had to deal with it. Even 16 more, she admitted that, but for her termination by Employer, “[she] would [not] feel 17 like [she does], as far as mentally[.]” She believes her mental state would be better 18 had it not been for her termination from employment. 19 {6} The WCJ found that “Worker’s mental illness and mental impairment are not 20 the natural and direct result of the accident[,] but rather are the natural and direct result

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1 of the termination of her employment.” The WCJ also concluded that “[t]he 2 termination of employment was for reasons unrelated to the accident or the physical 3 injuries suffered in the accident.” The WCJ stated: “But for the termination of 4 employment in October of [2010,] Worker would not presently be suffering from a 5 mental illness, would not presently have a mental impairment[,] and would not require 6 treatment from a mental health professional.” In a whole record review, we give 7 deference to the WCJ as the fact finder. Herman, 1991-NMSC-021, ¶ 6. The WCJ 8 concluded that Worker’s mental health problems did not derive from her original 9 injury. Given the clear course of Worker’s injury, termination, and the onset of her 10 depression, we conclude that substantial evidence does support the WCJ’s findings 11 on this issue, we therefore affirm his decision.

12 B. The WCJ’s Finding That an Exception to the Uncontradicted Medical 13 Evidence Rule Applies Was Correct

14 {7} The uncontradicted medical evidence rule is an exception to the general rule 15 that a trial court can accept or reject expert opinion as it sees fit. Lucero v. Los 16 Alamos Constructors, Inc., 1969-NMCA-005, ¶ 12, 79 N.M. 789, 450 P.2d 198. The 17 rule is found in NMSA 1978, Section 52-1-28(B) (1987), which requires a worker to 18 prove a causal connection between a disability and an accident by expert testimony. 19 Uncontradicted evidence by expert testimony is binding on the trial court. This rule 20 has four exceptions, however, one of which “occurs when the testimony is

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1 contradicted, or subject to reasonable doubt as to its truth or veracity, by legitimate 2 inferences drawn from the facts and circumstances of the case.” The rule does not 3 require the fact finder to accept the version of facts upon which an expert’s conclusion 4 is based. Nunez v. Smith’s Mgmt. Corp., 1988-NMCA-109, ¶ 15, 108 N.M. 186, 769 5 P.2d 99. For example, if an expert misunderstands the facts of a case, the fact finder 6 need not adopt the expert’s opinion that is based on that misunderstanding of the facts. 7 Id. (noting that an expert’s opinion is only as good as the factual basis for that 8 opinion). Dr. Ray and Dr. Gabriela Munoz, a psychologist, linked the termination of 9 Worker’s employment to her original injury. However, the WCJ determined that “the 10 termination of employment was not in any way, shape[,] or form linked to the work 11 accident.” He found “Worker’s testimony concerning the state of her mental health 12 after the . . . accident and before the termination of her employment as compared with 13 the state of her mental health after termination of her employment to be credible and 14 determinative as to the course of her mental illness.” {8} The psychiatric and 15 psychological evidence in this case is not uncontradicted because it is “subject to 16 reasonable doubt as to its truth or veracity, by legitimate inferences drawn from the 17 facts and circumstances of the case.” Dr. Ray’s opinion as to the source of Worker’s 18 psychological conditions was based upon the oral history provided by Worker. Dr. 19 Munoz was never deposed, and the factual basis for her opinions was not presented 20 at trial. However, the WCJ found that, “[i]n this case[,] the mental health

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1 professionals appear to link the termination of employment back to the . . . accident.” 2 This observation is given further credence by Dr. Ray’s deposition. On direct 3 examination by Worker, Dr. Ray causally related Worker’s psychological issues to the 4 workplace accident on September 16, 2009. However, on cross-examination, it 5 became apparent that Dr. Ray mistakenly believed that Worker was terminated as a 6 result of her workplace accident, and he based his causation opinions upon this 7 mistaken belief. He specified that Worker’s fall at work was not the immediate cause 8 of her depression and mental health concerns. Dr. Ray stated: “[I]t is an antecedent 9 cause. If she hadn’t fallen, the termination of employment wouldn’t have occurred.” 10 However, the undisputed fact that the termination was a result of nothing more than 11 a change in management breaks the causal chain that Dr. Ray relied upon in forming 12 that opinion. 13 {9} The evidence and testimony as to the causal link between Worker’s injury and 14 her subsequent mental health problems is not uncontradicted and is subject to 15 reasonable doubt as to its veracity. This evidence is dubious because both doctors 16 relied solely on Worker’s oral testimony to form their conclusion about causation. 17 What is more, Dr. Ray admitted to misunderstanding the facts of the case in his 18 deposition. The WCJ’s conclusion that the uncontradicted medical evidence rule does 19 not apply is affirmed. 20 C. The WCJ’s Finding That Worker Has Obtained MMI and Its Denial of

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1 Continued Benefits Is Affirmed 2 {10} The WCJ found that Worker reached MMI for her physical injuries suffered 3 with a nine percent whole person impairment rating and sedentary work restrictions. 4 The WCJ also found that Worker is not entitled to additional indemnity benefits as a 5 result of her mental illness or mental impairment. Worker filed a motion for 6 reconsideration on October 12, 2012, asking that the WCJ reconsider his findings in 7 regard to whether Worker suffered a mental impairment as a result of her work injury. 8 In denying the Worker’s motion, the WCJ noted that “the expert opinions concerning 9 causation were based on a presumed causal link between the . . . accident and the 10 termination of employment that [the WCJ found] simply did not exist.” Because we 11 agree with the WCJ in regard to the first two issues, we must affirm on this issue. The 12 Worker has reached MMI for her physical injuries, which are the only injuries arising 13 from the accident. The denial of continued benefits for her mental injuries is also 14 affirmed. 15 II. CONCLUSION 16 {11} For the foregoing reasons, we affirm the WCJ’s decision. 17 {12} IT IS SO ORDERED.

18 _________________________________ 19 RODERICK T. KENNEDY, Chief Judge

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1 WE CONCUR:

2 ___________________________ 3 LINDA M. VANZI, Judge

4 ___________________________ 5 M. MONICA ZAMORA, Judge