1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 RENEE C. PINKERTON,
8 Worker-Appellant,
9 v. NO. 29, 872
10 STEPHEN GIBBS, D.D.S., P.C. 11 and THE HARTFORD,
12 Employer/Insurer-Appellees.
13 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 14 Terry S. Kramer, Workers’ Compensation Judge
15 Gerald A. Hanrahan 16 Albuquerque, NM
17 for Appellant
18 Law Offices of Eva K. Rappaport 19 Ned S. Fuller 20 Albuquerque, NM
21 for Appellees
22 MEMORANDUM OPINION
23 VIGIL, Judge. 1 This is a workers’ compensation case. The Workers’ Compensation Judge
2 (WCJ) concluded that on July 20, 2007, Worker sustained an accidental injury arising
3 out of, and in the course of, her employment as a dental hygienist; that the accident
4 was reasonably incident to her employment as a dental hygienist; and that she suffered
5 a disability as a natural and direct result of the accident. The WCJ concluded that
6 Worker’s injury of focal dystonia, to a reasonable degree of probability, was caused
7 by her work as a dental hygienist with Employer. Dystonia is often brought on by
8 prolonged periods of intense focused activity, which is consistent with Worker’s
9 history as a dental hygienist.
10 However, the WCJ found that Worker failed to meet her burden of establishing
11 a disability resulting from depression due to her work-related injury. Worker appeals
12 and also seeks an award of attorney fees for the appeal. We reverse and remand for
13 entry of a revised Compensation Order and for a determination of the attorney fee
14 award to be made in the first instance by the WCJ.
15 I. BACKGROUND
16 Worker is a forty-eight-year-old woman who was employed as a dental
17 hygienist by Employer from 1993 until Friday, July 20, 2007, when she was injured
18 on the job. Worker’s injury was caused by many years of holding her wrist in an
19 awkward, strained position while working on people’s teeth. Worker experienced
2 1 burning and electrical shock-like pain in her hand and wrist. By the following
2 Monday, Worker was experiencing cramping, numbness, and tingling in her right
3 hand. Until her accident, Worker had not missed a single day of work with Employer
4 (fourteen years).
5 After the accident, Worker notified Employer of her injury, and Employer
6 exercised its statutory right to select Dr. Steven Weiner as Worker’s authorized health
7 care provider (HCP). Dr. Weiner referred Worker to Dr. Baten, and Dr. Baten
8 referred Worker to Dr. Donovan. Additional authorized HCPs and their referrals were
9 Dr. Chun, Dr. Moneim, Dr. Friedman, Dr. Radecki, and Dr. Feldman. None of these
10 doctors were able to correctly diagnose Worker’s injury. Focal dystonia is an
11 extremely rare condition, which explains the difficulty in diagnosing Worker’s injury.
12 Worker also continued to see her primary care physician, Dr. Maas, for her
13 general health concerns while seeing the authorized HCPs for her work-related injury.
14 Dr. Maas diagnosed Worker with depression in April 2008. The WCJ found that Dr.
15 Maas is not an authorized HCP.
16 On May 23, 2008, Worker exercised her statutory right to change her authorized
17 HCP to Dr. Schwartz. Employer did not object to Worker’s choice; however, one
18 week later, on May 30, 2008, Employer notified Worker that all benefits were being
19 terminated because it did not consider her injuries to be causally related to Worker’s
3 1 accident. Worker’s total temporary disability (TTD) benefits were therefore
2 terminated as of May 25, 2008. Despite this action by Employer, Worker commenced
3 treatment of her work-related injury with Dr. Schwartz on June 4, 2008.
4 Worker filed a complaint with the Workers’ Compensation Administration
5 (“WCA”). At the hearing, Worker testified and relied on the report of Dr. Donovan
6 as well as the depositions of Drs. Baten and Schwartz to establish a causal connection
7 between her secondary disability of depression and her work-related injury. The
8 depositions were used in lieu of live testimony as required by the WCA Rules. See
9 Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 28, 134 N.M. 421,
10 77 P.3d 1014 (noting that regulations exclude a health care provider from giving live
11 testimony at a WCA proceeding, but permits the admission of the deposition itself at
12 the proceeding in lieu of the health care provider’s testimony).
13 In its Compensation Order the WCJ concluded that Worker has a compensable
14 injury of focal dystonia. However, the WCJ also found that “Worker failed to meet
15 her burden establishing a disability resulting from depression due to her work related
16 injury,” and that Worker “is not disabled as a natural and direct result of any other
17 conditions including . . . depression.”
18 II. STANDARD OF REVIEW
19 NMSA 1978, Section 52-1-28(B) (1987) directs:
4 1 In all cases where the employer or his insurance carrier deny that an 2 alleged disability is a natural and direct result of the accident, the worker 3 must establish that causal connection as a probability by expert 4 testimony of a health care provider, as defined in Section 52-4-1 NMSA 5 1978, testifying within the area of his expertise.
6 To the extent we review the WCJ’s interpretation of the statutory requirements, our
7 review is de novo. See Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 14, 146
8 N.M. 453, 212 P.3d 341.
9 On the other hand, the issue of causation is a factual question which is
10 determined by the WCJ in workers’ compensation cases. Ortiz v. Overland Express,
11 2010-NMSC-021, ¶ 24, 148 N.M. 405, 237 P.3d 707. We review the factual findings
12 of the WCJ utilizing a whole record standard of review. Id. However, because the
13 medical causation evidence was presented by deposition, the WCJ findings on
14 causation are not entitled to the usual deference accorded findings of fact.
15 Under certain limited circumstances, a reviewing court has always 16 been able to make independent findings contrary to the fact finder. See, 17 e.g., Wilson v. Richardson Ford Sales, Inc., 97 N.M. 226, 638 P.2d 1071 18 (1981) (where the trial court’s findings are contrary to undisputed 19 evidence in the record); Martinez v. Universal Constructors, Inc., 83 20 N.M. 283, 491 P.2d 171 (Ct. App. 1971) (where the evidence is 21 documentary or by way of deposition). In these situations, it would seem 22 not to matter whether review is on the record as a whole or under the 23 substantial evidence standard.
24 Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 130, 767 P.2d 363, 369 (Ct.
25 App. 1988), modified on other grounds by Delgado v. Phelps Dodge Chino, Inc.,
5 1 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.
2 In addition, a WCJ is not free to reject uncontradicted medical evidence:
3 The uncontradicted medical evidence rule is an exception to the general 4 rule that a trial court can accept or reject expert opinion as it sees fit. 5 The rule is based on NMSA 1978, § 52-1-28(B), which requires the 6 worker to prove causal connection between disability and accident as a 7 medical probability by expert medical testimony. Because the statute 8 requires a certain type of proof, uncontradicted evidence in the form of 9 that type of proof is binding on the trial court.
10 Banks, 2003-NMSC-026, ¶ 35 (quoting Hernandez v. Mead Foods, Inc., 104 N.M. 67,
11 70, 716 P.2d 645, 648 (Ct. App. 1986) (alterations omitted)).
12 III. DISCUSSION
13 From our whole record review we conclude that Worker satisfied her burden
14 of establishing a disability resulting from depression due to her work-related injury
15 by presenting testimony of health care providers testifying within their area of
16 expertise.
17 As a result of the accident on July 20, 2007, Worker lost her ability to work as
18 a dental hygienist, her occupation for eighteen years. Instead of earning $69,000 per
19 year ($1328 per week), she began receiving TTD benefits at $595.67 per week.
20 Employer’s insurer terminated TTD benefits and medical treatment on October 28,
21 2007, and Worker had to file a complaint to have the TTD benefits and medical
22 treatment reinstated. Worker was examined or treated by Dr. Weiner, Dr. Baten, Dr.
6 1 Donovan, Dr. Chun, Dr. Moneim, Dr. Friedman, and Dr. Radecki. The medical
2 doctors offered different opinions as to the nature of Worker’s injury, and her
3 improvement was nominal. TTD payments and medical benefits were once again
4 terminated by Employer’s insurer on May 30, 2008, causing Worker financial distress.
5 Worker was able to find temporary employment from August 2008 until January
6 2009, as a clerical assistant earning about $500 per week. Within this context, we
7 examine the medical evidence.
8 Dr. Donovan’s Report
9 Dr. Baten referred Worker to Dr. Donovan for a neuropsychological
10 assessment, and Dr. Donovan reported the results of his assessment to Dr. Baten in a
11 report dated April 28, 2008. Dr. Donovan reported that “several interview sessions
12 were punctuated by several trips to the restroom and at least two crying episodes when
13 she described the plight of her condition.” Dr. Donovan added:
14 She is presently very perplexed by conflicting medical opinions. She 15 reports a loss of motor skills in her right hand, reaching a state of 16 drooping hand and claw hand, creating a situation where, “I could not 17 even tie my shoelaces.” She initiated a consultation with neurosurgeon, 18 Dr. Feldman, who according to the patient, said that the “cervical was 19 not an issue.” Dr. Baten had previously noted a cervical nerve root 20 compression at C5-6 and Dr. Baum, DO, thought there was “nerve 21 impingement.” According to the patient, she had two nerve conduction 22 studies (NCS and EMG?), both by Dr. [Radecki], which seemed to rule- 23 out radiculopathy. Dr. Baten has diagnosed mild carpal tunnel syndrome 24 and this seemed to be confirmed by Dr. [Radecki]’s EMG. On the other 25 hand, Dr. Steven Weiner (Progress Note of 10/09/07) notes that “this
7 1 seems more than simply a carpal tunnel problem,” and “I am
8 1 not sure if a carpal tunnel release would correct that” (08/20/07). To add 2 to this picture, Professor Moneim (UNM) states that, “I see no evidence 3 of carpal tunnel syndrome” and “I am unable to find an anatomical 4 reason,” adding that, “she believes that there is some problem with her 5 cervical spine.”
6 It would seem that what the patient describes as a diagnostic ambiguity 7 has had an anxiogenic impact upon her (“I want answers. Work is part 8 of my identity,” she says while crying on 04/04/08), which she 9 acknowledges with insight, not the least because it affects her 10 professional career and income. She aptly describes her situation as a 11 “fear of the unknown” so that she could not plan for her future: “How 12 do I cope with the loss of control in my life?”
13 Dr. Donovan’s diagnoses were “Pain Disorder associated with psychological
14 factors and a medical condition . . . [and] Adjustment Disorder with mixed anxiety.”
15 Dr. Donovan felt that an appropriate “treatment direction” was a “low dosage mood
16 stabilizer (such as clonazepam) . . . , which could be prescribed either by the treating
17 physician or by means of a psychiatric consultation.” Dr. Donovan concluded his
18 report by describing Worker as “perplexed by what she sees as a spectrum of
19 diagnoses, ambivalent about her lawsuit against her employer (Dr. Gibbs) for whom
20 she has worked for many years, uncertain of her future career, and beset by fears of
21 financial distress.”
22 Dr. Baten’s Testimony
23 Dr. Baten is licensed to practice medicine in New Mexico, and he is board
24 certified in neurology and clinical neurophysiology by the American Board of
9 1 Psychiatry and Neurology. On May 7, 2008, Dr. Baten saw Worker for a follow-up
2 visit. During the visit, Worker presented Dr. Baten with a note from Dr. Maas who
3 had diagnosed Worker with depression. Worker gave the note to Dr. Baten so he
4 could give her a prescription for an antidepressant as Worker’s authorized HCP.
5 Dr. Maas’ note said that Worker “has depression currently which is in large part due
6 to her stressors related to her lack of use of her right hand and her financial difficulties
7 arising from her unemployment as a result of this disability.” Dr. Baten declined to
8 write the prescription, noting
9 I explained to the patient that I would not give her an anti-depressant 10 medication to treat a condition for which is out of the scope of my care. 11 I suggested she discuss this with Janeen Maas, M.D., her primary 12 physician. If she is happy to do that, that would be fine. Otherwise I 13 recommend that she have a psychiatrist take care of her medications for 14 this.
15 While he did not prescribe the antidepressant medication, Dr. Baten testified it was
16 his opinion that Worker suffered depression as a result of her work injury:
17 Q. Dr. Maas stated that Ms. Pinkerton had depression, quote, 18 currently which is in large part due to her stressors related to her lack of 19 use of her right hand and her financial difficulties arising from her 20 [un]employment as a result of this disability. Would you agree with that 21 assessment, disagree with that assessment, or do you have no opinion?
22 A. No. I could understand, and I think Dr. Donovan’s 23 evaluation supports that.
24 Q. So you consider it to be work-related depression?
10 1 A. Right.
2 Q. You have somebody who has been in a career 18 years, 3 never misses a day of work, and suddenly they can’t perform their work 4 due to the condition of their right wrist?
5 A. Correct.
6 Q. And after that they get depressed?
7 A. Correct.
8 Q. And that would be related to the work-related injury and the 9 subsequent problems?
10 A. I would say so.
11 We also note that Dr. Radecki reported to Dr. Baten on February 12, 2008, that
12 Worker’s past medical history “is positive for nerve problems related to this difficulty,
13 psychological stressors, as well as thyroid problems.”
14 Dr. Schwartz’s Testimony
15 Worker’s injury was not diagnosed until she selected Dr. Schwartz, a board
16 certified physiatrist, as her authorized healthcare provider. Worker had already been
17 seen by Dr. Weiner, Dr. Baten, Dr. Chun, Dr. Moneim, Dr. Radecki, and Dr.
18 Donovan. On June 4, 2008, Dr. Schwartz made a diagnosis of “focal dystonia” which,
19 as a matter of reasonable medical probability, was causally related to her work for the
20 past fourteen years as a dental hygienist with Employer.
11 1 The diagnosis was based on the clinical examination and history. The “Past
2 Medical History” noted by Dr. Schwartz included “[d]epression recently diagnosed
3 with Dr. Maas.” Dr. Schwartz also had a copy of Dr. Radecki’s report dated February
4 12, 2008, which noted “[p]ast medical history is positive for nerve problems related
5 to this difficulty, psychological stressors, as well as thyroid problems.”
6 Dr. Schwartz referred Worker to Dr. Harris for a Botox assessment as a possible
7 treatment for the dystonia. After injecting Botox, Dr. Harris noted in her clinical
8 progress note sent to Dr. Schwartz that Worker had “[d]epression and anxiety, under
9 good control with Wellbutrin.” Dr. Schwartz also referred Worker to Dr. Lakind, who
10 noted, and reported to Dr. Schwartz, that Worker had a past medical history of
11 depression treated with Wellbutrin. Worker had already seen Dr. Donovan in April
12 2008, and Dr. Schwartz also had a copy of his report. Dr. Schwartz testified that Dr.
13 Donovan’s impression “was that of a pain disorder associated with psychological
14 factors, as well as an adjustment disorder with mixed anxiety.”
15 In the foregoing context, Dr. Schwartz gave the following testimony in her
16 deposition:
17 Q. As a matter of reasonable medical probability, do you think 18 there’s a causal connection between her depression and this occupational 19 injury or disorder or disease and everything she’s been through, through 20 the present?
12 1 A. I really do think there is a connection, but I don’t know that 2 I’m equipped to say within a reasonable degree of medical probability 3 that there’s a causal—that it’s the only cause.
4 Q. Okay.
5 A. So I would say absolutely there’s a connection.
6 Dr. Schwartz added, “But I hesitate to–based on my expertise because I didn’t make
7 the diagnosis, I didn’t treat her for it, and so I don’t know that I feel comfortable
8 answering that.”
9 Analysis of the Causation Determination
10 Employer argues that Dr. Donovan did not diagnose Worker as having suffered
11 from depression, and that “[o]n the contrary he found that her Beck Anxiety Scale
12 baseline measure was a 6 for depression ‘well within normal limits.’” The actual
13 statement in Dr. Donovan’s report is under the heading “Psychometrics” and it states,
14 “A mental status evaluation was performed which was within normal parameters.
15 Beck Depression and Anxiety Scales were administered to the patient with scores of
16 6 and 4 respectively which are well within normal limits.” This ignores other
17 notations in Dr. Donovan’s report. Dr. Donovan reports that Worker was currently
18 taking Wellbutrin; that her “major psychological stressors” were described as
19 financial, since she was not sure she could pay all of her bills and fear of the unknown
20 in understanding what was happening to her right arm; that Worker had some history
13 1 of depression and anxiety at relatively mild levels; that she had a “florid panic
2 episode” preceding a visit to Dr. Maas in mid-March; that a Beck Anxiety Scale for
3 that specific episode showed a score of 42, consistent with a florid panic attack; and
4 that Worker had not commenced Wellbutrin at the time of the panic attack, but did so
5 approximately one week after that episode. We therefore reject Employer’s assertion,
6 and review Dr. Donovan’s report as a whole, within the context of all the facts of the
7 case.
8 The WCJ rejected Dr. Baten’s causation evidence on the basis of findings that
9 (1) “Dr. Maas is not an authorized healthcare provider”; (2) “Dr. Baten’s opinions on
10 depression are based upon the opinions of an unauthorized healthcare provider [Dr.
11 Maas] and are rejected”; and (3) “Dr. Baten’s opinions on depression are not well
12 founded and are rejected.” This is not a proper basis for rejecting Dr. Baten’s
13 testimony even if we agree that Dr. Maas was not an authorized HCP, because our
14 Supreme Court has specifically held that an authorized HCP such as Dr. Baten is
15 entitled to rely on otherwise inadmissible records from a non-HCP physician. Dewitt,
16 2009-NMSC-032, ¶ 33. This does not contravene the rule that only authorized HCPs
17 may give evidence. Id.
18 Employer argues that Dr. Baten was testifying outside his area of expertise
19 because Dr. Baten stated in the note quoted above that he would not give an
14 1 antidepressant medication to treat Worker for a condition “which is out of the scope
2 of my care.” However, Employer provides us with no authority to support its legal
3 assertion. Furthermore, the assertion ignores Dr. Baten’s own observations, the
4 medical records before him, and the testimony he gave without any objection from
5 Employer. We therefore reject Employer’s argument.
6 Worker also challenges the WCJ finding concerning Dr. Schwartz that “Dr.
7 Schwartz’s opinions on depression are equivocal and inherently contradictory and are
8 rejected.” Our whole record review does not support the finding that Dr. Schwartz’s
9 testimony is “equivocal” or “inherently contradictory.” Her testimony was clear in
10 its assertion that “absolutely” there is a connection between Worker’s depression and
11 her occupational injury. We acknowledge she also stated she was unable to testify
12 that the work injury was the “only” cause, and that she was “hesitant” to make a
13 diagnosis of depression because she did not treat her for depression. However, the
14 causal connection in a workers’ compensation case does not have to be proved
15 conclusively, and the medical expert is not required to state her opinion in positive,
16 dogmatic language, or in the exact language of the statute. Gammon v. Ebasco Corp.,
17 74 N.M. 789, 794, 399 P.2d 279, 282 (1965). The history and medical records before
18 Dr. Schwartz, which she was entitled to rely on, demonstrate that Worker had
19 depression as a result of her work injury and that she was receiving medical treatment
15 1 for the depression. We conclude that Dr. Schwartz’s testimony, in the context of our
2 whole record review, is sufficient to support a finding of medical causation in this
3 case.
4 In this regard we note that while the WCJ found that Worker failed to meet her
5 burden of establishing a disability resulting from depression due to her work-related
6 injury, he nevertheless concluded that there is a connection between Worker’s focal
7 dystonia and her depression. The WCJ concluded:
8 Worker is entitled to reasonable and necessary medical care to include 9 payment for all medical treatment provided, directed or referred by Dr. 10 Schwartz including past and continuing treatment by Dr. Schwartz; past 11 treatment by Dr. Lakind; past and continuing treatment by Dr. Harris, 12 including Botox injections; biofeedback treatment by Genevieve Davis 13 and future antidepressant medications reasonably necessary to aid 14 Worker’s recovery for her physical injury.
15 (Emphasis added.)
16 Based on our de novo and whole record review we find that the evidence does
17 not sufficiently support the WCJ’s finding that Worker did not establish a causal
18 connection between the depression and the work-related injury. Rather, our review
19 supports a finding that Dr. Donovan’s report and the opinions of Dr. Baten and Dr.
20 Schwartz are well founded, uncontradicted and must be considered. In doing so, we
21 conclude that Worker has met her burden under Section 52-1-28(B) of establishing
22 a causal connection by a probability by expert testimony between her depression and
16 1 the work-related injury and accident.
2 IV. ATTORNEY FEES
3 Worker also seeks attorney fees for bringing this appeal. NMSA 1978, Section
4 52-1-54 (2003) allows for an award of attorney fees on appeal. Although we may
5 directly award attorney fees, because an award of attorney fees involves factual
6 determinations, which the WCJ is more suited to decide, we remand to the WCJ to
7 determine whether Worker is entitled to attorney fees for bringing this appeal, and if
8 so, the amount. See Dennison v. Marlowe, 108 N.M. 524, 527, 775 P.2d 726, 729
9 (1989) (concluding that the contract did not restrict recovery of attorney fees incurred
10 at the trial level, but included attorney fees incurred on appeal, and remanding for the
11 trial court to determine reasonable attorney fees incurred on appeal); Vinton Eppsco,
12 Inc. of Albuquerque v. Showe Homes, Inc., 97 N.M. 225, 226, 638 P.2d 1070, 1071
13 (1981) (noting that if the statute allows for attorney fees at both trial and appellate
14 levels, the appellate court has discretion to make an allowance of attorney fees on
15 appeal or remand to the trial court for that purpose).
16 V. CONCLUSION
17 We reverse and remand for entry of a revised Compensation Order consistent
18 with this opinion and for a determination of Worker’s attorney fees in bringing this
19 appeal.
17 1 IT IS SO ORDERED.
2 _____________________________ 3 MICHAEL E. VIGIL, Judge
4 I CONCUR:
5 _________________________________ 6 RODERICK T. KENNEDY, Judge
7 CYNTHIA A. FRY, Chief Judge (dissenting)
18 1 FRY, Chief Judge.
2 I respectfully dissent. In my view, the plain language of the governing statute,
3 Section 52-1-28(B), requires affirmance because Worker failed to carry her burden for
4 establishing a causal connection between her depression and her work-related
5 accident.
6 Section 52-1-28(B) states that in cases where causation is disputed, “the worker
7 must establish that causal connection as a probability by expert testimony of a health
8 care provider . . . testifying within the area of his expertise.” (Emphasis added.) In
9 this case, the only health care providers who testified were Dr. Baten and Dr.
10 Schwartz, and neither one of them testified as a probability that Worker’s depression
11 was caused by her on-the-job accident. Even if they had, neither one of them would
12 have been testifying within the area of their expertise. Dr. Baten is a neurologist and
13 Dr. Schwartz is a physiatrist. Both of them clearly expressed their lack of expertise
14 in this area. Dr. Baten said he would not prescribe antidepressants for Worker
15 because they would be used to “treat a condition for which [sic] is out of the scope of
16 my care.” Dr. Schwartz said that she “didn’t make the diagnosis” of depression,
17 “didn’t treat [Worker] for it,” and thus, that she did not “know that [she felt]
18 comfortable answering” Worker’s attorney’s questions about the causal connection
19 between Worker’s depression and the work-related injury.
19 1 The majority attempts to incorporate the diagnoses and impressions of Drs.
2 Donovan and Maas into the testimony of Drs. Baten and Schwartz by relying on
3 Dewitt for the proposition that HCPs may rely on the records of non-HCP doctors.
4 This analysis would certainly be appropriate if either Dr. Baten or Dr. Schwartz had
5 relied on the diagnoses of Dr. Donovan or Dr. Maas in reaching their own opinions
6 that there was, as a probability, a causal connection between Worker’s depression and
7 the accident. See Dewitt, 2009-NMSC-032, ¶ 33 (noting that testifying HCP relied
8 heavily on the non-HCP’s records “in arriving at his own opinions”). But I do not
9 think it can fairly be said that Dr. Baten or Dr. Schwartz reached such opinions
10 because both qualified their testimony by noting that the diagnosis and treatment of
11 Worker’s depression was outside their area of expertise.
12 In addition, I am not persuaded by the majority’s finding of a causal connection
13 in reliance on (1) the fact that the medical evidence was presented entirely by
14 deposition and (2) the “rule” stated in Tallman that an appellate court may make its
15 own “independent findings contrary to the fact finder.” 108 N.M. at 130, 767 P.2d at
16 369. I do not view our case law as stating that we need not accord any deference to
17 the WCJ when the evidence is documentary. This Court in Tallman stated that whole
18 record review does not mean that a court may displace the administrative agency’s
19 “choice between two fairly conflicting views, even though the court would justifiably
20 1 have made a different choice had the matter been before it de novo.” Id. at 129, 767
2 P.2d at 368 (internal quotation marks and citation omitted); see Martinez, 83 N.M. at
3 284, 491 P.2d at 172 (explaining that on whole record review, “the trial court’s
4 finding is to be included in the weighing and review”). The majority believes there
5 was no evidence conflicting with Dr. Baten’s and Dr. Schwartz’s statements that they
6 thought Worker’s depression and her accident were related, and that this justifies
7 reliance on the Tallman rule. But in my view, Dr. Baten’s and Dr. Schwartz’s
8 testimony falls far short of the testimony required by Section 52-1-28(B) and,
9 consequently, the Tallman rule is inapposite. Moreover, if the rule were as clear-cut
10 as suggested by the majority, we could simply disregard the WCJ’s findings based on
11 expert medical testimony in every workers’ compensation case and make our own
12 findings because the applicable regulation requires medical testimony to be by
13 deposition. See NMAC 11.4.4.12(G)(1) (2/19/2010) (“Live medical testimony shall
14 not be permitted, except by an order of the [WCJ].”).
15 I would hold that the WCJ properly applied Section 52-1-28(B) and that
16 substantial evidence in the whole record supports the finding that Worker failed to
17 establish a causal nexus between her depression and the on-the-job injury.
18 19 CYNTHIA A. FRY, Chief Judge