Englett v. Bee Hive
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Opinion
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LONA ENGLETT,
3 Worker-Appellant,
4 v. NO. 32,007
5 BEE HIVE ASSISTED LIVING 6 and CHURCH MUTUAL 7 INSURANCE COMPANY,
8 Employer/Insurer-Appellees.
9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 David L. Skinner, Workers’ Compensation Judge
11 James Rawley 12 Albuquerque, NM
13 for Appellant
14 Rodey, Dickason, Sloan, Akin & Robb, P.A. 15 Paul R. Koller 16 Albuquerque, NM
17 for Appellees
18 MEMORANDUM OPINION 1 KENNEDY, Judge.
2 Lona Englett (Worker) appeals the compensation order denying her benefits.
3 We proposed to affirm in a calendar notice, and Worker has responded with a
4 memorandum in opposition. We have carefully considered Worker’s arguments, but
5 we find them unpersuasive. We affirm the decision of the Workers’ Compensation
6 Judge (WCJ).
7 Worker again claims that her refusal to return to work was reasonable. As
8 discussed in our calendar notice, we defer to the expertise of the WCJ. We determine
9 whether there was evidence to support the findings of the WCJ and, if so, we accept
10 the findings of the WCJ. See Herman v. Miners’ Hosp., 111 N.M. 550, 552, 807 P.2d
11 734, 736 (1991). As of August 11, Worker was offered, and accepted, restricted duty
12 at her job, and she was initially assigned to the day shift. Worker testified that she
13 was informed that her schedule would be changed to include three night shifts and two
14 day shifts. After she was given this information, Worker did not return to work.
15 Worker apparently believed that, if any portion of her schedule included working on
16 the night shift, the work restrictions would no longer be in place, and she would be
17 required to perform work that was beyond her capacity and that did not fit within the
18 work restrictions she was given. Contrary to this belief, Worker’s supervisor testified
19 that Worker would have continued with light duty until the work restrictions were
2 1 removed. There is nothing in the record to support a claim that working the night shift
2 would have resulted in Worker performing duties outside the recommended
3 restrictions. We hold that the WCJ’s finding—that Worker’s refusal to return to work
4 was not reasonable—was supported by the evidence.
5 The WCJ found that Worker did not meet the burden of proof to show causation
6 for her alleged secondary mental impairment. Worker again claims that the WCJ
7 erred in finding that the testimony from her expert was equivocal. Worker agrees that
8 the expert was not able to determine causation for Worker’s alleged secondary mental
9 impairment to a reasonable degree of medical probability. However, Worker attempts
10 to explain this by pointing to other testimony from the expert, particularly, the
11 expert’s recommendation that a psychiatric consultation be considered. The WCJ can
12 reject uncontradicted testimony if the witness is unworthy of belief, the testimony is
13 equivocal or includes inherent improbabilities, or subject to reasonable doubt based
14 on inferences drawn from the circumstances of the case. See Grine v. Peabody
15 Natural Res., 2006-NMSC-031, ¶ 29, 140 N.M. 30, 139 P.3d 190. As noted by
16 Worker, the expert made comments about “being cautious” about causation, “worried”
17 about “something underlying” that might not have come out during the
18 evaluation,“trying to buy a little bit of time” in making a determination about
19 causation, and hoping that some future treatment could provide more information.
3 1 [MIO 6] The WCJ determined that the testimony of the expert was equivocal at best
2 and should not be accepted. We affirm that determination and hold that it was not
3 error for the WCJ to conclude that Worker was not entitled to benefits for a secondary
4 mental impairment.
5 Worker continues to claim that her job involved heavy work rather than
6 medium work. Worker points to the fire plan for assisting residents out of the facility
7 and claims that such a task would involve heavy work. Worker admits that no fire
8 emergency occurred, but speculates that there could have been a situation where a
9 worker would have had to lift over fifty pounds. [MIO 8-9] Worker alleges that
10 assisting residents out of the facility “in a rapid manner” is simply not a medium level
11 of work and is work typically performed by responders to a fire. Worker claims that
12 the fire plan “called for assistance of the elderly out of the first floor windows,” and
13 she interprets that plan to require her to stand outside the window and “grab ahold”
14 of the residents and take them out. [MIO 7]
15 Worker’s supervisor emphatically disagreed with Worker’s interpretation of the
16 fire plan. [MIO 8] The supervisor testified that “if a patient fell to the floor, she
17 would not be lifted up alone, perhaps helped up, or the fire department called; a
18 judgment call.” [MIO 7] Worker’s supervisor also testified that most of the tasks
19 performed by staff involved bedside or chair-side assistance, and residents that could
4 1 not stand and hold themselves up or could not assist when being transferred from a
2 bed to a chair were not allowed to stay in the facility. [MIO8] The WCJ determined
3 that the customary work was performed at medium level, that Worker’s capacity was
4 at sedentary level, and that most of the work that would be performed by Worker
5 would be at sedentary to light level with occasional lifting up to fifty pounds. Based
6 on the whole record review, we affirm that determination.
7 Worker continues to claim that she was entitled to a point for training because
8 she can no longer work as a care giver or companion. [MIO 15] Under NMSA 1978,
9 Section 52-1-26.3(D) (2001), “[a] worker who cannot competently perform a specific
10 vocational pursuit shall be awarded one point. A worker who can perform a specific
11 vocational pursuit shall not receive any points.” This has been interpreted to mean
12 that “a worker who, at the time of [her] disability rating, is unable to return to any of
13 [her] former occupations due to [her] disability should receive one point.” Medina v.
14 Berg Constr., Inc., 1996-NMCA-087, ¶ 22, 122 N.M. 350, 924 P.2d 1362.
15 Employer claimed that Worker had previously been employed in jobs involving
16 sedentary to light work. [RP 193] Worker testified that she had been employed for
17 almost one year as a care giver for a man who had an additional care giver to lift him,
18 which eliminated the need for Worker to assist with the man’s shower or bath. [MIO
19 11] In addition, after reaching MMI, Worker was able to act as a care giver and/or
5 1 attendant on a voluntary basis for a relative of her boyfriend. [RP 205] Although
2 Worker provides her own account of her pain and inability to lift more than ten
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Englett v. Bee Hive, Counsel Stack Legal Research, https://law.counselstack.com/opinion/englett-v-bee-hive-nmctapp-2012.