Johnson v. Hoyt & Son Tree Service

2007 NMCA 072, 161 P.3d 894, 141 N.M. 849
CourtNew Mexico Court of Appeals
DecidedMarch 19, 2007
DocketNo. 26,661
StatusPublished
Cited by1 cases

This text of 2007 NMCA 072 (Johnson v. Hoyt & Son Tree Service) 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
Johnson v. Hoyt & Son Tree Service, 2007 NMCA 072, 161 P.3d 894, 141 N.M. 849 (N.M. Ct. App. 2007).

Opinion

OPINION

WECHSLER, Judge.

{1} The opinion filed in this case on March 19, 2007 is hereby withdrawn and the following substituted therefor. The motion for rehearing is denied.

{2} We address in this appeal the right of the Uninsured Employer’s Fund (the UEF) to change health care providers under NMSA 1978, § 52-1-49 (1990). We hold that the UEF does not have such a right and reverse the decision of the workers’ compensation judge (the WCJ) to the contrary. We remand for further proceedings.

BACKGROUND

{3} The underlying facts are not in dispute. Worker, John Johnson, suffered a work-related injury on December 9, 2003. He was taken to San Juan Regional Medical Center, from which he was transferred to University of New Mexico Hospital. He was ultimately transferred to Fort Bayard Hospital and later released. Worker’s employer, Stanley Hoyt, d/b/a Hoyt and Son Tree Service (Employer), did not have workers’ compensation insurance. The UEF completed a certificate of eligibility determination stating the UEF’s obligation to pay Worker’s claim for workers’ compensation benefits to the extent the claim is compensable. After Worker filed his complaint against both Employer and the UEF, Worker and the UEF entered mediation that resulted in a recommended resolution. Worker and the UEF accepted the recommended resolution, but Employer rejected it. The recommended resolution was nevertheless approved because Employer’s rejection was untimely. Under the recommended resolution, the UEF would pay Worker benefits, including reasonable and necessary medical care. The UEF did so.

{4} The dispute that gives rise to this appeal subsequently arose with regard to the choice of health care provider. Without objection, Worker served a notice of change of health care provider to Orthopedic Associates. The UEF thereafter served a notice of change to Dr. Fred Mosely. Worker objected. After a hearing, the WCJ issued an order overruling Worker’s objection. The WCJ ruled that Employer did not initially direct medical care, and that the care Worker received from San Juan Regional Medical Center, University of New Mexico Hospital, and Fort Bayard Medical Center was either emergency care or Worker’s choice of health care and a continuation thereof. The WCJ held that the UEF has the ability to “avail itself [of] the rights afforded” Employer and therefore, because it had not previously directed medical care, had the right to change the health care provider.

AUTHORITY OF THE UEF UNDER SECTION 52-1-49

{5} Worker argues on appeal that Employer did not properly notify Worker of his right to select a health care provider initially and that, therefore, Employer was presumed to have selected the initial health care provider. See 11.4.4.11(C)(2)(b) NMAC (“If the decision of the Employer is not communicated in writing to the Worker, the Employer shall be presumed, absent other evidence, to have selected the HCP initially.”). As a result, according to Worker, the UEF could not exercise a right that Employer did not have. To the extent that the UEF’s rights might be viewed as derivative of the employers’ rights in these types of cases, we agree with Worker that the UEF was not entitled to change the HCP under the circumstances of this case. See Howell v. Marto Elec., 2006-NMCA-154, ¶¶ 28, 32, 140 N.M. 737, 148 P.3d 823.

{6} However, the UEF contends that it has a right of its own to independently direct a worker’s health care, and therefore our analysis must turn to the statutory authority of the UEF to do so. If the Workers’ Compensation Act (the Act) does not provide the authority for the UEF to change a worker’s health care provider without action by an employer, the UEF could not have so acted in this case, even if Employer had not initially selected the health care provider.

{7} The UEF contends that it has the authority to change a health care provider. According to the UEF, it is a separate party to the case with separate pecuniary interests as to a claim against it that grants it “all the separate rights and obligations afforded by law to a worker and employer in a traditional workers’ compensation claim.”

{8} We address the authority of the UEF as an issue of statutory construction of the Act subject to our de novo review. Grine v. Peabody Natural Res., 2006-NMSC-031, ¶ 17, 140 N.M. 30, 139 P.3d 190. In construing the Act, we look to it as an harmonious whole, reading each part in connection with all other parts. Lopez v. Employment Sec. Div., 111 N.M. 104, 105, 802 P.2d 9, 10 (1990).

{9} We first turn to the nature of the UEF. It is a statutory creation under the Act. NMSA 1978, § 52-l-9.1(A) (2004). Its corpus consists of fees paid by employers or insurance carriers. Section 52-l-9.1(B). It is placed with the state treasury and administered by the WCA. Section 52-1-9.1(A). The WCA may use the UEF to pay benefits to a worker if the worker’s employer “has failed to maintain workers’ compensation coverage because of fraud, misconduct or other failure to insure or otherwise make compensation payments.” Section 52-1-9.1(C).

{10} As has occurred in this case, a worker may make a claim against the UEF if the worker’s employer is uninsured. See § 52-1-9.1(C). Upon the filing of such a claim, the UEF becomes a party to the proceeding, as the UEF contends. We further agree with the UEF that, at least at that point, the UEF has separate pecuniary interests that it has the right to protect. However, our agreement with the UEF’s position dissipates with its contention that to protect its interests it has all the rights of a worker and an employer afforded by law. The Act makes no such provision of authority.

{11} To be sure, the Act does contain provisions that protect the UEF with respect to claims. First, the Act grants the UEF the subrogation rights of the worker or the worker’s dependents against the employer failing to pay benefits, § 52 — 1—9.1(E), and subjects payments made by the UEF to subrogation and apportionment as if paid by a third party tortfeasor. Section 52-1-9.1(1). Second, after the UEF has paid benefits, the WCA director or a WCJ must order the employer to reimburse the UEF for all benefits paid and interest, costs, and attorney fees, and to pay a penalty to the UEF of fifteen to fifty percent of the value of the total award made with respect to the worker’s claim. Section 52-l-9.1(G). These provisions are designed to secure the UEF’s fiscal integrity when it is compelled to pay benefits on behalf of an uninsured employer.

{12} But the Act does not bestow upon the UEF the authority to act as either an employer or a worker with respect to the selection of a health care provider. The Act addresses that process in Section 52-1-49, which reads:

A. After an injury to a worker and subject to the requirements of the Workers’ Compensation Act ... and continuing as long as medical or related treatment is reasonably necessary, the employer shall, subject to the provisions of this section, provide the worker in a timely manner reasonable and necessary health care services from a health care provider.
B. The employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Silva v. Denco Sales Co.
2020 NMCA 012 (New Mexico Court of Appeals, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 072, 161 P.3d 894, 141 N.M. 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-hoyt-son-tree-service-nmctapp-2007.