Peterson v. Northern Home Care

912 P.2d 831, 121 N.M. 439
CourtNew Mexico Court of Appeals
DecidedFebruary 5, 1996
Docket16521
StatusPublished
Cited by7 cases

This text of 912 P.2d 831 (Peterson v. Northern Home Care) 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
Peterson v. Northern Home Care, 912 P.2d 831, 121 N.M. 439 (N.M. Ct. App. 1996).

Opinion

OPINION

PICKARD, Judge.

1. Worker appeals an order of the workers’ compensation judge. The order found that (1) Worker was in an accident at such a time that the 1991 Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (Repl. Pamp.1991) (effective January 1, 1991), applied; (2) Worker was temporarily totally disabled for slightly over 89 weeks, at which point she reached maximum medical improvement; (3) following the date of maximum medical improvement, Worker has a psychological condition and disability, but no physical impairment; and (4) Worker is not entitled to disability benefits because the psychological condition lacks a numerically rated impairment.

2. Worker’s appeal challenges the finding of no physical impairment, the failure to award disability benefits for the psychological condition, and a finding relating to calculation of disability that was contrary to the parties’ pretrial stipulation. Employer does not controvert Worker’s last issue, but contends that substantial evidence supports the finding of no physical impairment, that substantial evidence would support a finding of no disability whatsoever, that Worker’s recovery from the physical impairment precludes recovery of benefits for secondary mental impairment, and that Worker did not prove any rating for her psychological impairment alone and thus is not entitled to benefits.

3. We affirm in part and reverse in part. Specifically, we hold that the finding of no physical impairment was supported by substantial evidence, that Worker is entitled to approximately 11 weeks of benefits for secondary mental impairment, and that on remand the judge should calculate those benefits using the nonnumerical descriptions in the AMA Guidelines and using the parties’ stipulation. Our disposition of these issues makes it unnecessary to decide Worker’s constitutional challenges to the statute’s method of determining disability benefits.

FACTS

4. Worker was a home health care worker when she broke her foot in a job-related accident. In the pre-trial order, the parties stipulated that the physical capacity of Worker’s job was “heavy.” See § 52-1-26.4. The foot injury affected Worker’s leg, back, and mental health and resulted in total temporary disability for 89 weeks.

5. Worker was treated by Dr. Jones for the orthopedic symptoms and by Dr. Naimark, a psychologist, for the psychological problems and pain. Both doctors saw no reason not to believe Worker’s complaints of pain. Employer, however, introduced testimony, including videotape, of Worker’s activities, particularly that of selling produce at a local farmers’ market, that would cast doubt on her complaints of pain and inability to do physical activities.

6. Dr. Jones testified that Worker reached maximum medical improvement, see § 52-1-24.1, and he gave Worker an impairment rating of 5% based on the status of Worker’s back and the pain related to her altered gait, see § 52-l-24(A). He testified that the fact that Worker was selling produce at the market would not affect his impairment rating, although he also said that his impairment rating was based in part on Worker’s subjective complaints.

7. Dr. Naimark testified that Worker reached maximum medical improvement for her psychological condition. Consistent with the AMA Guidelines, he did not give her a numerical impairment rating for her pain disorder. He said that her impairment was mild to moderate, depending on the amount of pain she suffered at the particular time.

8. The judge found that Worker reached maximum medical improvement for all conditions. He also found that, in light of her marketing activities, Worker no longer had a physical impairment after maximum medical improvement. The judge found that Worker suffers a continuing psychological condition that is disabling, but “Worker is not entitled to permanent partial disability benefits. This is because the psychological condition lacks a numerically rated impairment[.]” The judge also found that the physical capacity of Worker’s job as a home health care worker was “medium.”

PHYSICAL IMPAIRMENT

9. Worker contends that, because Section 52-l-24(A) requires the judge to base an impairment rating on medical and scientific evidence and because only one doctor testified on the issue of rating Worker’s physical impairment and he rated it at 5%, the judge was required to accept that rating. We disagree.

10. In an analogous situation, we have recognized that a doctor’s opinion is only as good as the facts upon which he or she bases it. Thus, although Section 52-1-28 requires expert testimony on the issue of causation when it is contested and our cases hold that uncontradicted testimony on that issue is binding on the trial court, Hernandez v. Mead Foods, Inc., 104 N.M. 67, 70, 716 P.2d 645, 648 (Ct.App.1986), we have also held that there are exceptions to the rule, id. at 70-71, 716 P.2d at 648-49, and one such' exception is where the facts providing the basis for the expert’s testimony are not worthy of belief, see Nunez v. Smith’s Management Corp., 108 N.M. 186, 189-90, 769 P.2d 99, 102-03 (Ct.App.1988). In this case, there was evidence that cast doubt on Worker’s reports of pain to Dr. Jones. Accordingly, the judge was entitled to discount Dr. Jones’ establishment of a 5% impairment rating for Worker and was entitled to find that Worker had no physical impairment.

IMPAIRMENT RATING FOR PSYCHOLOGICAL CONDITION

11. Worker contends that the judge erred in refusing to award permanent partial disability benefits on the basis that Worker’s condition lacked a numerical rating. We agree.

12. Initially, Employer argues that the same evidence that caused the judge to find that Worker did not have a physical impairment provided substantial evidence for the judge to have found no impairment whatsoever. The problem with Employer’s argument is that it is not what the judge found. The judge made detailed findings that included finding that Worker did continue to suffer from a psychological condition and that she did have a permanent disability. The judge’s conclusion, quoted above, is quite specific that disability benefits were not awarded because there was no numerical rating for Worker’s psychological impairment. Under these circumstances, we do not uphold the judgment based on factual findings contrary to those made by the judge. See Worland v. Worland, 89 N.M. 291, 293-94, 551 P.2d 981, 983-84 (1976) (judgment must be supported by findings).

13. Employer next argues that Worker cannot have a secondary mental impairment because, by definition, Worker must have a current physical impairment to have a secondary mental impairment. Employer’s contention is based on a misreading of the statute. Although Section 52-l-24(C) defines secondary mental impairment as a mental illness “resulting from” a physical impairment, it does not require a continuation of the physical impairment. It simply requires the physical impairment to trigger the mental illness.

14.

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Cite This Page — Counsel Stack

Bluebook (online)
912 P.2d 831, 121 N.M. 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peterson-v-northern-home-care-nmctapp-1996.