Flowers v. White's City, Inc.

834 P.2d 950, 114 N.M. 73
CourtNew Mexico Court of Appeals
DecidedJune 5, 1992
Docket13260
StatusPublished
Cited by6 cases

This text of 834 P.2d 950 (Flowers v. White's City, Inc.) 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
Flowers v. White's City, Inc., 834 P.2d 950, 114 N.M. 73 (N.M. Ct. App. 1992).

Opinion

OPINION

APODACA, Judge.

White’s City, Inc., and Transamerica Insurance Group (collectively referred to as employer) appeal an order by the workers’ compensation, judge (judge) awarding claimant Teresa T. Flowers (worker) temporary total disability benefits, medical benefits, vocational rehabilitation, and attorney fees. Employer raises two issues on appeal: (1) whether certain documents forwarded to this court by the Workers’ Compensation Administration (Administration) as the “supplemental record proper” can be considered by us on appeal, and (2) whether there was substantial evidence to support the judge’s decision. We hold that the evidence contained in the “supplemental record proper” was not before the judge and thus cannot be considered by this court in determining whether substantial evidence supported the judge’s decision. Considering only the record that was before the judge, we also hold that there was not substantial evidence in the whole record to support the judge’s decision. We therefore reverse the judge’s award of benefits.

BACKGROUND

Worker was employed by employer in June 1990 when she fell and injured her back. She did not return to work after the accident. She filed a claim for workers’ compensation benefits, requesting temporary total disability benefits, permanent total disability benefits, permanent partial disability benefits, vocational rehabilitation, medical expenses, and a lump sum settlement. A mediation conference was held in September 1990. Employer rejected the recommended resolution and requested a formal hearing. After the formal hearing, the judge found, in part, that:

17. The following health care provider’s bills ... have not been paid by Employer or Insurer, are for medically necessary treatment of [worker’s] job related injuries, and represent treatment reasonable in extent and in cost:
* * * * * *
18. As a direct and proximate result of the accident ..., to a reasonable medical probability, [worker] suffered an injury to the back, hips, and body as a whole.
19. As a direct result of the accident ..., [worker] suffers from disabling pain.
20. For the period June 09, 1990 until present, [worker] is totally temporarily disabled. [Worker] suffered an impairment from an accidental injury arising out of and in the course of employment which prevents her from engaging for remuneration or profit in any occupation for which she is fitted by age, training, or experience.
* * sft * * sis
22. [Worker’s] disability and impairment are the direct and proximate result, to a medically reasonable probability, of the accident of June 09, 1990.

The judge concluded that “[a]s a direct and proximate result of the accident ..., [worker] was rendered temporarily totally disabled from June 09, 1990 until present.” In its docketing statement and at the time this case was originally assigned to our summary calendar, employer’s argument that there was not substantial evidence to support these findings and conclusion specifically focused on worker’s failure to present any medical evidence to establish that her disability was the result of a work-related accident to a reasonable medical probability, as required by NMSA 1978, Section 52-l-28(B) (Repl.Pamp.1991). After this appeal was assigned to our general calendar, the Administration, in addition to forwarding the record proper to this court, submitted sixteen pages from its correspondence file pertaining to the case. These pages included two form letters to health care providers and physical capacities evaluations forms signed by worker’s doctors. They were designated the supplemental record proper. Employer then filed a motion with this court to strike the supplemental record proper, contending that the material contained in it was not before the judge at the hearing and thus could not be considered on appeal. This motion was denied.

DISCUSSION

1. Whether the supplemental record proper may be considered by this court.

It is well established in New Mexico that review of administrative proceedings:

“is [generally] limited to the record made in the administrative proceeding, and the courts decline to hear new or additional evidence to review or revise findings of fact made by the administrative tribunal, especially where the evidence was available and could have been introduced in the administrative tribunal. To allow findings to be attacked or supported in court by new evidence would substitute the court for the administrative tribunal.”

Swisher v. Darden, 59 N.M. 511, 515-16, 287 P.2d 73, 76 (1955) (quoting 42 Am.Jur.Publie Administrative Law § 224 (1942)) (emphasis added). This court applies the whole record standard of review to decisions of the Administration. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.1988). Under this standard, although we, as a reviewing court, continue to view the evidence in the light most favorable to the Administration’s decision, we must also consider the evidence unfavorable to the Administration’s decision in determining whether the evidence is adequate to support the conclusion reached. Id. The specific issue presented to us is whether documents available to the judge in the Administrative files but not admitted as evidence at the formal hearing are included in “the whole record” for this court to decide the substantial evidence issue raised on appeal.

Employer focuses its objections on the form letters to health care providers contained in the supplemental record proper. These letters apparently were prepared for the mediation conference. They were not offered or admitted as exhibits by either party at the formal hearing, and there is no evidence that the judge considered them in reaching his decision. Employer’s main argument is that, because the form letters were not introduced as evidence at the formal hearing, they were not part of the record proper and cannot be considered by this court on appeal. Worker, on the other hand, claims that this court can consider the form letters because the judge below could have taken judicial notice of the contents of the correspondence file. Additionally, worker argues that this court has already denied employer’s motion to strike, and thus the material is part of the record proper and we should not reconsider the issue.

Although we agree that an administrative agency may modify the record proper on its own motion, we do not agree that this court may necessarily consider the added material in determining whether there is substantial evidence to support the judge’s decision. We need not reconsider our denial of employer’s motion to strike because we conclude that, although the material is now included in the record on appeal, nonetheless, we may not consider it in determining whether substantial evidence in the whole record supports the judge’s decision.

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Bluebook (online)
834 P.2d 950, 114 N.M. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-whites-city-inc-nmctapp-1992.