McCaul v. EAN Holdings LLC

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 LEANNE MCCAUL, 3 Worker-Appellant, 4 v. No. A-1-CA-35061

5 EAN HOLDINGS LLC, and 6 FIDELITY & GUARANTEE 7 INSURANCE CO.,

8 Employer/Insurer-Appellees.

9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 Shannon Riley, Workers’ Compensation Judge

11 Dorato & Weems LLC 12 Derek Weems 13 Albuquerque, NM

14 for Appellant

15 Hoffman Kelley Lopez L.L.P. 16 Jeffrey Federspiel 17 Albuquerque, NM

18 for Appellee 19 MEMORANDUM OPINION 20 ATTREP, Judge.

1 {1} Worker Leanne McCaul appeals from an order of the Workers’ 2 Compensation Judge (the WCJ), denying Worker’s request for sanctions against 3 EAN Holdings LLC and Fidelity & Guarantee Insurance Company (collectively, 4 Employer/Insurer) for unfair claim-processing practices under the Workers’ 5 Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended 6 through 2017). Worker argues that the WCJ erred on two grounds: (1) in 7 determining there was no unfair claims processing in this case, and (2) in awarding 8 less than fifteen percent post-judgment interest under NMSA 1978, Section 56-8- 9 4(A)(2) (2004). We affirm. Because this is a nonprecedential, memorandum 10 opinion, we set forth only such facts and law as are necessary to decide the merits. 11 BACKGROUND 12 {2} The WCJ approved Worker’s petition for partial lump sum payment for 13 debts at a hearing on March 25, 2015, requiring Employer/Insurer to pay Worker a 14 lump sum for repayment to the Social Security Administration. An agreed form of 15 order was filed on April 23, 2015 (the Lump Sum Order). It is questionable 16 whether the Workers’ Compensation Administration (the WCA) ever sent copies 17 of the Lump Sum Order to the parties. On July 9, 2015, Worker’s attorney located 18 a copy of the Lump Sum Order and forwarded it to Employer/Insurer’s attorney 19 requesting payment. Employer/Insurer did not respond to this inquiry. On July 23, 20 2015, and again on August 4, 2015, Worker’s attorney emailed Employer/Insurer’s

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1 attorney the Lump Sum Order and asked for a status on the check. 2 Employer/Insurer did not respond to these inquiries. 3 {3} On August 12, 2015, Worker filed an application to enforce order approving 4 lump sum advancement (the Application) seeking, inter alia: (1) enforcement of 5 the Lump Sum Order, (2) an order finding unfair claim-processing practices and 6 awarding a ten percent penalty payable directly to Worker, (3) an award of 8.75 7 percent post-judgment interest from July 9, 2015, to the date the check is delivered, 8 and (4) an award of attorney’s fees of $750.00 paid entirely by Employer/Insurer. 9 The Application attached the email correspondence from Worker’s attorney to 10 Employer/Insurer’s attorney as outlined above. Employer/Insurer did not file a 11 written response to the Application or otherwise respond to the Application prior to 12 the hearing on the Application. 13 {4} The WCJ held a hearing on the Application on September 2, 2015. No 14 evidence was admitted at this hearing. Counsel for Worker and counsel for 15 Employer/Insurer, instead, proceeded by making representations and argument. No 16 party objected to this approach before the WCJ, and no party has challenged on 17 appeal the WCJ’s reliance on the representations and argument of counsel. 18 {5} At the hearing, Worker’s attorney reiterated the contents of the Application. 19 Employer/Insurer’s attorney offered an explanation for the delay in payment. 20 Employer/Insurer’s attorney explained that he received the Lump Sum Order in

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1 July from Worker’s attorney. Since then, Employer/Insurer’s attorney had 2 corresponded with the adjuster, and the adjuster had sent him a payment history so 3 he could ensure no double payments were made. Employer/Insurer’s attorney 4 verified that the check could be issued approximately one week to ten days before 5 the hearing and discussed issuing the check with the adjuster. Employer/Insurer’s 6 attorney stated that the adjuster had issued the check the day of the hearing with 7 ten percent interest dating back to April 23, 2015, the date the Lump Sum Order 8 was filed. Worker’s attorney did not object to Employer/Insurer’s attorney making 9 the foregoing representations, otherwise challenge the reasonableness of 10 Employer/Insurer’s attorney’s representations, or present any evidence or further 11 representations in rebuttal. Instead, Worker’s attorney argued that the delay 12 nonetheless amounted to unfair claims processing. 13 {6} In making her ruling, the WCJ stated that she personally knew the WCA 14 clerk’s office was not sending out orders around the time the Lump Sum Order was 15 issued and that she did not want to penalize Employer/Insurer for the WCA’s error. 16 The WCJ determined that there was no unfair claims processing in this case 17 because there was no fault by either party. Worker’s attorney then specifically 18 requested a ruling from the WCJ as to whether the evidence of Employer/Insurer’s 19 conduct after July 9, 2015—i.e., email inquiries regarding the status of the check, 20 the filing of the Application, and no response by Employer—was sufficient to

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1 make out a claim for unfair claims processing. The WCJ made note that the 2 argument of counsel is not evidence, yet proceeded, without objection from the 3 parties, to base her ruling on the representations of counsel. The WCJ ruled that 4 she did not believe this situation rose to the level of unfair claims processing 5 because Employer/Insurer’s attorney had to check that there was no double 6 payment, and the WCJ believed Employer/Insurer’s attorney was in fact doing this 7 research and was diligently trying to get the matter resolved. Worker’s attorney, at 8 the request of the WCJ, prepared the written Order memorializing the WCJ’s 9 ruling, which was filed on September 18, 2015. The Order denied Worker’s unfair 10 claims processing claim but awarded post-judgment interest of ten percent from 11 April 23, 2015, and attorney’s fees to be paid fifty percent by Employer/Insurer 12 and fifty percent by Worker. This appeal followed. 13 DISCUSSION 14 I. Unfair Claim-Processing Practices 15 {7} The parties dispute whether Worker preserved her unfair claims processing 16 claim for appellate review, and whether the WCJ erred in deciding that there was 17 no unfair claims processing in this case. 18 A. Worker Preserved Her Unfair Claims Processing Claim 19 {8} Employer/Insurer argues that Worker failed to preserve the issue of unfair 20 claims processing for appeal because Worker did not request findings of fact or

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1 conclusions of law. In this case, Worker’s attorney asked for a ruling on the unfair 2 claims processing claim, specifically inquiring why the facts presented did not rise 3 to the level of unfair claims processing. Worker’s counsel then prepared an order, 4 at the direction of the WCJ, memorializing the WCJ’s decision denying Worker’s 5 unfair claims processing claim. This is sufficient to preserve the issue of whether 6 the WCJ erred in denying Worker’s unfair claims processing claim for appellate 7 review.1 See Unified Contractor, Inc. v. Albuquerque Hous. Auth., 2017-NMCA- 8 060, ¶ 34, 400 P.3d 290 (concluding that a party can preserve a substantial 9 evidence issue for appellate review by requesting findings and conclusions or 10 otherwise calling the lower court’s attention to the error and, even in the absence of 11 either, this Court may still review the lower “court’s decision to determine whether 12 it is legally correct, and whether it is supported by findings of fact, if any, made by 13 the [lower] court.” (alteration, internal quotation marks, and citation omitted)).

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Worker, however, fails to preserve any claims outside the Act. Worker argues that Employer/Insurer owed duties under the common law and the Trade Practice and Frauds Article of the Insurance Code, NMSA 1978, §§ 59A-16-1 to -

-30 (1984, as amended through 2017). Yet, in Worker’s Application and at the hearing on her Application, Worker relied exclusively on the Act and its associated regulations. See Wolfley v. Real Estate Comm’n, 1983-NMSC-064, ¶ 5, 100 N.M.

187, 668 P.2d 303 (“[I]ssues not raised in administrative proceedings will not be considered for the first time on appeal.”); Woolwine v. Furr’s, Inc., 1978-NMCA-

133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To preserve an issue for review on appeal, it must appear that [the] appellant fairly invoked a ruling of the [lower]

court on the same grounds argued in the appellate court.”).

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1 B. The WCJ Did Not Err in Determining There Was No Unfair Claims 2 Processing

3 {9} Worker argues that the WCJ erred in determining there was no unfair claims 4 processing in this case.2 “All workers’ compensation cases are reviewed under a 5 whole record standard of review[,]” Moya v. City of Albuquerque, 2008-NMSC- 6 004, ¶ 6, 143 N.M. 258, 175 P.3d 926, to “determine if there is substantial 7 evidence to support the result[,]” Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 8 10, 142 N.M. 605, 168 P.3d 177 (internal quotation marks and citation omitted). 9 “We view the evidence in the light most favorable to the decision[.]” Dewitt v. 10 Rent-A-Ctr., Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “We defer 11 to the fact finder’s resolution of conflicts in the evidence and indulge all inferences 12 in favor of the findings.” Rodriguez v. McAnally Enters., 1994-NMCA-025, ¶ 11, 13 117 N.M. 250, 871 P.2d 14; see also Romero v. Laidlaw Transit Servs., Inc., 2015- 14 NMCA-107, ¶ 8, 357 P.3d 463 (“We give deference to the WCJ as fact finder 15 where findings are supported by substantial evidence.”). Our appellate courts 16 review the WCJ’s application of the law to the facts de novo. Tom Growney Equip. 17 Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320. We also apply

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In her briefs, Worker refers to her claim interchangeably as bad faith and/or unfair claims processing. However, in Worker’s Application and at the hearing on her Application, Worker argued that Employer/Insurer’s actions amounted to unfair claims processing alone. We, therefore, evaluate only Worker’s unfair claims processing claim. See Wolfley, 1983-NMSC-064, ¶ 5; Woolwine, 1978-NMCA-133, ¶ 20.

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1 a de novo standard of review to the extent our analysis involves the interpretation 2 of the Act and its associated regulations. Romero, 2015-NMCA-107, ¶ 8; Howell v. 3 Marto Elec., 2006-NMCA-154, ¶ 16, 140 N.M. 737, 148 P.3d 823. 4 {10} The party bringing a claim of unfair claims processing has the burden of 5 proving such a claim. Cf. Sosa v. Empire Roofing Co., 1990-NMCA-097, ¶ 8, 110 6 N.M. 614, 798 P.2d 215 (holding that the worker—in workers’ compensation 7 context—had the burden of proof to establish bad faith on the part of employer and 8 insurer); Munoz v. Deming Truck Terminal, 1990-NMCA-084, ¶ 18, 110 N.M. 9 537, 797 P.2d 987 (holding that “a party seeking relief based upon disputed factual 10 matters has the burden of proof of presenting sufficient evidence to support such 11 contentions”); Wallace v. Wanek, 1970-NMCA-049, ¶ 9, 81 N.M. 478, 468 P.2d 12 879 (“He who alleges the affirmative must prove.”). In this case, Worker has the 13 burden. 14 {11} The Act grants a cause of action for unfair claim-processing practices, and 15 awards a successful claimant a benefit penalty up to twenty-five percent of the 16 amount ordered to be paid. Section 52-1-28.1(A), (B). The Act does not define 17 unfair claim-processing practices but gives the WCA director authority to adopt 18 definitions by regulation. Section 52-1-28(E). The applicable regulation in turn 19 defines “unfair claims processing” as “any practice, whether intentional or not, 20 which unreasonably delays or prolongs the payment of benefits at a rate not

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1 consistent with the [A]ct.” 11.4.1.7(W) NMAC. Whether a delay is unreasonable 2 generally is a fact question to be considered in light of the surrounding 3 circumstances. Cf. Leyba v. Whitley, 1995-NMSC-066, ¶ 28, 120 N.M. 768, 907 4 P.2d 172 (“As always, what is reasonable is a question of fact to be determined in 5 light of all the surrounding circumstances.”); Dydek v. Dydek, 2012-NMCA-088, 6 ¶ 31, 288 P.3d 872 (“Whether, under the circumstances of this case, the offer to 7 settle was timely is a question of fact.”). 8 {12} Before reviewing the WCJ’s findings, we take this opportunity to emphasize 9 that the record before us is far from ideal. The WCJ’s resolution of Worker’s unfair 10 claims processing claim relied on the statements and argument of counsel. While 11 the WCJ made note of this peculiarity, neither Worker nor Employer/Insurer 12 objected to this procedure below nor objects to the WCJ’s decision on this basis on 13 appeal. We do not endorse the procedures utilized in the hearing on the 14 Application, which resulted in a poorly-developed record. Cf. NMSA 1978, § 52-5- 15 7 (1993) (contemplating the presentation of evidence in contested matters before a 16 workers’ compensation judge); Munoz, 1990-NMCA-084, ¶ 20 (“Arguments or 17 recitations of counsel, whether presented orally or by memoranda or in briefs, are 18 not evidence.”). However, as this has not been raised as an issue on appeal, we 19 proceed to evaluate Worker’s claims of error on the limited record before us. See 20 Baker v. Endeavor Servs., Inc., ___-NMSC-___, ¶ 2, ___ P.3d ___ (No. S-1-SC-

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1 36651, Sept. 6, 2018) (deciding workers’ compensation case despite the fact that 2 “[t]he record proper . . . [was] lacking in a number of ways” where “[t]he parties 3 [did] not dispute the factual findings of the workers’ compensation judge”); N.M. 4 Dep’t of Human Servs. v. Tapia, 1982-NMSC-033, ¶¶ 8-12, 97 N.M. 632, 642 P.2d 5 1091 (reversing the Court of Appeals’ determination that administrative agency’s 6 procedures were not in accordance with law when the issue was not briefed on 7 appeal nor challenged at trial); State v. Am. Fed’n of State, Cty., & Mun. Emps., 8 2012-NMCA-114, ¶ 35, 291 P.3d 600 (“Our Supreme Court has admonished that 9 courts risk overlooking important facts or legal considerations when they take it 10 upon themselves to raise, argue, and decide legal questions overlooked by the 11 lawyers who tailored the case to fit within their legal theories.” (alteration, internal 12 quotation marks, and citation omitted)). 13 {13} The WCJ first determined that the delay between the entry of the Lump Sum 14 Order and July 9, 2015 (the date Employer/Insurer received a copy of this order) 15 was no fault of the Employer/Insurer as the WCA was not mailing out orders at 16 that time, and this delay should not be held against Employer/Insurer. Worker 17 argues that the WCJ erred in examining fault because unfair claims processing can 18 arise from unintentional conduct and, as such, the regulations impose essentially 19 strict liability. Worker misconstrues the applicable regulatory provisions. The 20 regulation imposes liability for unreasonable delays, not strict liability for any and

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1 all delays. Furthermore, Worker cites to no authority in support of her argument 2 that fault of the parties should not be among the circumstances that are relevant to 3 a determination of unreasonable delay. See Curry v. Great Nw. Ins. Co., 2014- 4 NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an 5 argument, we may assume no such authority exists.”). Given this, we find no error 6 in the WCJ’s examination of fault in this case. 7 {14} The WCJ next found that Employer/Insurer’s attorney “was in fact 8 doing . . . research [to ensure no double payments] and he was diligently trying to 9 get this matter resolved.” On this basis, the WCJ determined that the facts did not 10 give rise to unfair claims processing. Notably Worker does not challenge the 11 WCJ’s finding that Employer/Insurer undertook an investigation to determine 12 whether a check needed to be issued. Instead, Worker argues that the WCJ actually 13 found that Employer/Insurer did not begin its investigation into whether payment 14 should be made until the week before the hearing, or, in the alternative, if 15 Employer/Insurer began its investigation after receiving the Lump Sum Order, it 16 was incredible that it took weeks to complete the investigation. 17 {15} As to Worker’s first contention, the WCJ made no such finding that the 18 Employer/Insurer did not begin its investigation until the week before the hearing. 19 Instead, the WCJ found that “counsel for Employer/ Insurer represented to the 20 [c]ourt that he had been in communication with his adjuster regarding the payment

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1 to determine if the money remained owed [and] that they determined the money 2 was owed during communication taking place the week of August 24-28, 2015[.]” 3 The WCJ’s finding in this regard is supported by Employer/Insurer’s attorney’s 4 unchallenged statements that he began investigating whether payment should be 5 made after receiving the Lump Sum Order in July. See Rodriguez, 1994-NMCA- 6 025, ¶ 11 (“We . . . indulge all inferences in favor of the findings.”); Bryant v. Lear 7 Siegler Mgmt. Servs. Corp., 1993-NMCA-052, ¶ 7, 115 N.M. 502, 853 P.2d 753 8 (We do not “seek to determine whether the evidence supports a contrary finding.”). 9 {16} Worker’s second contention is that the investigation undertaken by 10 Employer/Insurer was simply “double checking a payment ledger to be sure that 11 the payment had not been issued . . . , which could be performed in a matter of 12 seconds, not requiring a matter of months.” But there is no record to support this 13 contention. Indeed, the thoroughness of Employer/Insurer’s investigation simply 14 was not explored before the WCJ. And, “[i]n the absence of evidence in the record 15 to the contrary, we assume the record supports the ruling of the lower court.” State 16 ex rel. Children, Youth & Families Dep’t v. Andrea M., 2000-NMCA-079, ¶ 7, 129 17 N.M. 512, 10 P.3d 191; see also Reeves v. Wimberly, 1988-NMCA-038, ¶ 21, 107 18 N.M. 231, 755 P.2d 75 (“Upon a doubtful or deficient record, every presumption is 19 indulged in favor of the correctness and regularity of the trial court’s decision, and

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1 the appellate court will indulge in reasonable presumptions in support of the order 2 entered.”). 3 {17} Worker next contends that Section 52-5-10, which provides an enforcement 4 mechanism for past due payments of compensation orders, creates essentially per 5 se liability for unfair claims processing. Section 52-5-10 provides that when a 6 payment of a compensation order is in default for thirty days or more, the person 7 owed the monies can make an application for a supplementary compensation order 8 to the WCA director to declare the amount in default and then petition the district 9 court for entry of judgment on the supplementary compensation order. Section 52- 10 5-10(A), (B). Worker reads Section 52-5-10 to impose a “strict time limit” of thirty 11 days and suggests any violation of this time limit amounts to per se unfair claims 12 processing. Again, Worker misconstrues the applicable statutory and regulatory 13 provisions. While Section 52-5-10 certainly provides guidance in determining what 14 may amount to delay “at a rate not consistent with the [A]ct,” 11.4.1.7(W) NMAC, 15 it does not, as Worker suggests, impose liability for unfair claims processing for 16 any delay in payment of thirty days or more. Had the Legislature or the WCA 17 director intended that every default under Section 52-5-10 amount to unfair claims 18 processing, the Act and the regulation could have been written that way. They were 19 not.

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1 {18} Worker finally contends that Employer/Insurer’s actions amount to specific 2 examples of unfair claim-processing practices found in the regulations. In 3 particular, Worker argues that Employer/Insurer engaged in the following 4 prohibited practices:

5 (2) failing to acknowledge and act promptly upon 6 communications with respect to claims; 7 (3) failing to adopt and implement reasonable standards for 8 the prompt investigation and processing of claims; 9 (4) failing to affirm or deny coverage of claims within a 10 reasonable time after a request for payment of benefits has been 11 submitted to an employer; 12 (5) not attempting in good faith to develop prompt, fair and 13 equitable settlements of claims in which liability has become clear.

14 11.4.1.7(W) NMAC. As to alleged practice (3), Worker presented no evidence 15 pertaining Employer/Insurer’s standards for investigating and processing claims or 16 the lack thereof. As to alleged practices (4) and (5), Worker fails to explain how 17 the facts and circumstances of this case support a determination that these practices 18 have been committed; and a review of the record does not make this apparent. See 19 Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty 20 to review an argument that is not adequately developed.”). 21 {19} As to alleged practice (2), the record does demonstrate a lack of 22 communication by Employer/Insurer in responding to Worker’s inquiries 23 pertaining to the Lump Sum Order. While we cannot condone Employer/Insurer’s 24 silence, under the plain regulatory language, Employer/Insurer’s failure to

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1 acknowledge Worker’s communications must be coupled with a failure to act 2 promptly in order to make out an unfair claims processing claim. See 3 11.4.1.7(W)(2) NMAC. In this regard, the WCJ made a determination that 4 Employer/Insurer was acting diligently to get the matter resolved. 5 Employer/Insurer provided an explanation for the delay in payment of the Lump 6 Sum Order, which went unchallenged and unrebutted by Worker. Given this, the 7 WCJ’s reliance in this case on Employer/Insurer’s explanation in determining there 8 was no unfair claims processing was rational. See Gomez v. Bernalillo Cty. Clerk’s 9 Office, 1994-NMCA-102, ¶ 6, 118 N.M. 449, 882 P.2d 40 (“When a finding is 10 made against the party bearing the burden of persuasion, the reviewing court will 11 affirm if the fact finder acted rationally.”). 12 {20} We conclude that the WCJ’s findings pertaining to the reasonableness of the 13 delay are supported by substantial evidence in the limited record before us. As 14 such, under the particular circumstances of this case, we cannot say that the 15 resulting delay was unreasonable or that the WCJ erred in determining there was 16 no unfair claims processing. Our decision here today, however, does not approve 17 of Employer/Insurer’s failure to respond to inquiries by Worker regarding the 18 payment of amounts due pursuant to a compensation order. And it seems quite 19 possible to us that the investigation undertaken by Employer/Insurer could have 20 been completed more expeditiously. Facts supporting such a finding could have

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1 been elicited by the Worker in any number of ways—for example, by calling the 2 adjuster to testify, by pointedly questioning the Employer/Insurer’s attorney (with 3 the permission of the WCJ) about the extent and length of the investigation, or 4 perhaps by simply objecting to Employer/Insurer making factual representations 5 through counsel. This record, however, was not developed before the WCJ, is not 6 presented to us, and cannot form the basis of our decision. 7 II. Post-Judgment Interest Rate 8 {21} Worker additionally argues that the WCJ erred in awarding post-judgment 9 interest at a rate of ten percent, instead of the heightened interest rate of fifteen 10 percent under Section 56-8-4(A)(2). Employer/Insurer argues that Worker failed to 11 preserve this issue. In her Application, Worker did not request heightened interest 12 at fifteen percent, but instead requested the standard post-judgment interest of 8.75 13 percent under Section 56-8-4(A). Moreover, at the hearing on her Application, 14 Worker did not object to Employer/Insurer’s offer of ten percent post-judgment 15 interest or the WCJ’s award of the same. As such, this issue is not preserved. See 16 Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 12, 125 N.M. 748, 965 17 P.2d 332 (“The party claiming error must have raised the issue below clearly, and 18 have invoked a ruling by the court, thereby giving the [lower] court an opportunity 19 to correct any error[.]” (citations omitted)). The award of ten percent post- 20 judgment interest stands.

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1 CONCLUSION 2 {22} For all the foregoing reasons, the WCJ’s September 18, 2015 Order is 3 affirmed. 4 {23} IT IS SO ORDERED.

5 ______________________________ 6 JENNIFER L. ATTREP, Judge

7 WE CONCUR:

8 ______________________________ 9 STEPHEN G. FRENCH, Judge

10 ______________________________ 11 EMIL J. KIEHNE, Judge