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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 LOUIE SANCHEZ, 3 Worker-Appellant, 4 v. No. 35,068
5 LOS LUNAS PUBLIC SCHOOLS 6 and CCMSI,
7 Employer/Insurer-Appellees.
8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 9 David L. Skinner, Workers’ Compensation Judge
10 Michael J. Doyle 11 Los Lunas, NM
12 for Appellant
13 Camp Law, LLC 14 Minerva Camp 15 Albuquerque, NM
16 for Appellees 17 MEMORANDUM OPINION 18 SUTIN, Judge.
1 {1} Worker has appealed from a compensation order. We previously issued a notice 2 of proposed summary disposition in which we proposed to uphold the decision of the 3 workers’ compensation judge (WCJ). Worker has filed a memorandum in opposition, 4 and Employer/Insurer has filed a memorandum in support, which we have duly 5 considered. Because we remain unpersuaded that reversible error occurred, we affirm. 6 {2} Worker raised four issues in his docketing statement, [DS 10, 13, 16, 17] three 7 of which he renews in his memorandum in opposition. [MIO 1, 9, 10] We will avoid 8 unnecessary repetition of the background and principles previously set forth in the 9 notice of proposed summary disposition, and instead, focus on the substantive content 10 of the memorandum in opposition. 11 {3} First and foremost, Worker asserts that the WCJ erred in declining to assign an 12 impairment rating [MIO 1-8], notwithstanding Worker’s failure to present competent 13 medical evidence in support thereof. [CN 2; RP 157 (¶ 30)] In reliance upon cases 14 decided under a previous version of the Workers’ Compensation Act and more recent 15 authority addressing residual capacity, Worker continues to argue that the WCJ should 16 have applied the AMA Guides himself and should have assigned an impairment rating 17 in the absence of expert medical testimony. [DS 10; MIO 1-3] However, as we 18 observed in the notice of proposed summary disposition, Worker’s argument runs 19 afoul of controlling precedent. In Yeager v. St. Vincent Hospital, 1999-NMCA-020,
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1 126 N.M. 598, 973 P.2d 850, this Court rejected the argument advanced by the worker 2 that a WCJ could assign an impairment rating in the absence of medical testimony on 3 the percentage of impairment based on the WCJ’s own comparison of the clinical 4 findings to the AMA Guides. Id. ¶ 14. 5 {4} In his memorandum in opposition, Worker observes that Yeager involved the 6 need for a specialist and further notes that Yeager did not foreclose any possibility that 7 a WCJ might properly assign an impairment rating in a proper case. [MIO 5] Be that 8 as it may, nothing in Yeager or any other authority of which we are aware requires a 9 WCJ to undertake to assign an impairment rating in the absence of medical testimony. 10 Moreover, Worker’s arguments ignore the ensuing discussion, where the Court 11 explained that “in cases that require some medical judgment in order to determine the 12 degree of impairment, the WCJ may not determine the worker’s impairment rating 13 without a medical expert opinion.” Id. ¶ 17. The findings in this case reflect that 14 “some medical judgment” was required, see id., which the WCJ lacked. [RP 158 15 (¶ 31)] Under the circumstances, the WCJ properly declined to assign an impairment 16 rating in the absence of expert medical opinion. 17 {5} We understand Worker to suggest that Yeager and other authorities addressing 18 the use of the AMA Guides to assign impairment ratings, including Madrid v. St. 19 Joseph Hospital, 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250, should be
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1 reconsidered. [MIO 5-8] However, we are in no position to second-guess decisions 2 rendered by the New Mexico Supreme Court, and we decline the invitation to limit, 3 abrogate, or attempt to limit Yeager. See generally State ex rel. Martinez v. City of Las 4 Vegas, 2004-NMSC-009, ¶¶ 20, 24, 135 N.M. 375, 89 P.3d 47 (observing that the 5 Court of Appeals is bound by Supreme Court precedent, and reiterating the 6 importance of stare decisis, in light of which a compelling reason is required to 7 overrule precedent). 8 {6} By his second issue, Worker asserts that the testimony of a doctor who 9 performed an independent medical examination (IME), Dr. Auerbach, should have 10 been excluded. [MIO 9] We previously invited the parties to supply clarity on the 11 question of mutual agreement. [CN 5] Employer/Insurer’s response ambiguously 12 indicates that Worker’s primary healthcare provider opined “that the adjuster’s request 13 for an IME was reasonable” and that “he made the referral.” [MIS 2] It is unclear 14 whether the pronoun refers to the adjuster or the doctor, and Employer/Insurer fails 15 to mention whether the referral was made to Dr. Auerbach specifically. Worker’s 16 memorandum in opposition is far more clear. It unequivocally reflects that Worker’s 17 healthcare provider did not make the referral to Dr. Auerbach, and Worker did not 18 specifically agree to the selection of Dr. Auerbach for the purpose of conducting the 19 IME. [MIO 9] In light of this clarification, it seems apparent that the IME was
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1 unauthorized, and as such, Dr. Auerbach’s testimony and records should have been 2 excluded. See Brashar v. Regents of Univ. of Cal., 2014-NMCA-068, ¶¶ 15-16, 327 3 P.3d 1124 (holding that, in the absence of an appointment of an IME doctor by the 4 WCJ, the parties must mutually agree to the selection of a particular IME specifically; 5 a unilateral decision cannot be made by either party). 6 {7} Although we acknowledge the foregoing evidentiary error, the error was 7 harmless. As we observed in the notice of proposed summary disposition, Dr. 8 Auerbach’s opinions principally bore upon the question of impairment under the 9 AMA Guides. [RP 158 (¶ 33)] Although her opinion that Worker had no impairment 10 provided general support for the WCJ’s ultimate determination, regardless of that 11 testimony, Worker’s own failure to satisfy his burden of proof was fatal to his claim 12 for permanent partial disability (PPD) benefits. See Jurado v. Levi Strauss & Co., 13 1995-NMCA-129, ¶¶ 11, 13, 120 N.M. 801, 907 P.2d 205 (observing that a worker 14 seeking PPD benefits must establish an impairment rating). 15 {8} In his memorandum in opposition, Worker observes that Dr. Auerbach’s 16 testimony was not limited to the question of impairment; her records also bore upon 17 the question of causation. [MIO 10] This brings us to Worker’s third issue on appeal, 18 by which he continues to assert that, absent Dr. Auerbach’s records, the evidence
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1 should be regarded as insufficient to support the WCJ’s decision on causation. [MIO 2 10] 3 {9} We perceive no merit to the argument. On the subject of causation, the WCJ’s 4 findings reflect that Worker did suffer non-specific low back pain as a natural and 5 direct result of the accident. [RP 156 (¶ 20)] In light of this determination, Worker was 6 awarded temporary total disability (TTD) benefits. [RP 157 (¶ 28)] Worker does not 7 take issue with the assigned maximum medical improvement (MMI) date, and he 8 appears to have been awarded TTD benefits in excess of his request. [RP 145 (¶ 33), 9 157-58 (¶¶ 28-29, 34)] The only other matter upon which causation would appear to 10 bear is the question of entitlement to PPD benefits [RP 1-2, 157-58 (¶¶ 30, 37)], and 11 as previously stated, Worker’s failure or inability to establish impairment foreclosed 12 that claim. Under the circumstances, the alleged error is harmless. 13 {10} In any event, as we noted in the notice of proposed summary disposition, with 14 respect to the scope of the injury caused by the workplace accident the WCJ did not 15 rely exclusively upon Dr. Auerbach’s records. [RP 156, 158] Worker does not dispute 16 that Dr. Castillo’s evaluation was properly admitted, and he acknowledges that the 17 evaluation supports the WCJ’s decision. [MIO 10] Although we understand Worker 18 to suggest that Dr. Castillo’s evaluation and the opinions contained therein were too 19 “limited” to overcome medical records tending to support the existence of a casual
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1 relationship between Worker’s medical condition and the workplace accident [MIO 2 10], we decline to second-guess the WCJ’s assessment. See generally Villa v. City of 3 Las Cruces, 2010-NMCA-099, ¶ 29, 148 N.M. 668, 241 P.3d 1108 (“We give 4 deference to a WCJ’s findings in regard to conflicting evidence of causation.”); 5 Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, ¶ 21, 120 N.M. 734, 906 6 P.2d 266 (“Generally, when there is conflicting medical testimony concerning 7 causation, the reviewing court will defer to the finder of fact.”); Wilson v. Yellow 8 Freight Sys., 1992-NMCA-093, ¶ 22, 114 N.M. 407, 839 P.2d 151 (“[W]here the 9 evidence bearing upon the issue of causation is conflicting, the fact that there was 10 evidence which, if accepted by the fact[-]finder, would have permitted it to reach a 11 different result does not constitute a basis for reversal.”). 12 {11} Accordingly, for the reasons stated in this Opinion and in the notice of proposed 13 summary disposition, we affirm. 14 {12} IT IS SO ORDERED.
15 __________________________________ 16 JONATHAN B. SUTIN, Judge
17 WE CONCUR:
18 _______________________________ 19 RODERICK T. KENNEDY, Judge
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1 _______________________________ 2 M. MONICA ZAMORA, Judge