Smith v. Cutler Repaving

1999 NMCA 030, 974 P.2d 1182, 126 N.M. 725
CourtNew Mexico Court of Appeals
DecidedJanuary 11, 1999
Docket19,013
StatusPublished
Cited by16 cases

This text of 1999 NMCA 030 (Smith v. Cutler Repaving) 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
Smith v. Cutler Repaving, 1999 NMCA 030, 974 P.2d 1182, 126 N.M. 725 (N.M. Ct. App. 1999).

Opinion

OPINION

ARMIJO, Judge.

{1} Ronald A. Smith (Worker), challenges an administrative determination that he has reached maximum medical improvement (MMI) for his primary physical and secondary mental injuries resulting from a work-related injury. Worker makes two arguments on appeal: (1) the MMI findings below are not supported by sufficient evidence; and (2) it was error to admit certain deposition testimony. For the reasons stated below, we affirm in part and reverse in part.

FACTS AND PROCEEDINGS

{2} In 1993, while working for Appellee, Cutler Repaving (Employer), Worker caught his right ankle and foot under a heavy asphalt roller machine. Following the injury, Worker underwent several amputations, leaving him with a short, above-the-knee stump. Worker has since undergone extensive treatment, including subsequent surgeries, in an attempt to adjust to a prosthetic limb. As of July 30, 1997, Worker had not yet adjusted to the prosthetic. At the hearing, Worker testified to: fluctuating weight induced by related stress; sores and other damage to his' leg resulting from attempts to use the prosthetic; and phantom pains and numbness in his good leg. His wife testified that the prosthetic quickly causes Worker to develop bloody blisters and that he has significant difficulty ambulating on the device. Worker has never adjusted to the use of his prosthetic limb.

{3} As of the hearing, Dr. Edward J. Atler had been treating Worker regarding his leg and adjustment to the prosthetic device for four years. While Dr. Atler had previously stated that “things seem to have settled down” and that “it seem[ed] that this situation has stabilized now in terms of the stump,” he testified that as of July 30, 1997, he believed Worker had not reached MMI in regards to his physical injury. He further estimated that Worker retained a twenty percent chance of further recovery.

{4} The record also contains testimony from Dr. Brian P. Delahoussaye, a physician to whom Dr. Atler referred Worker for a determination of the extent of his physical impairment. At the time of his deposition, Dr. Delahoussaye had not seen Worker for approximately two years. However, Dr. Delahoussaye testified that when he examined Worker, on August 10, 1995, he “was under the impression” that Dr. Atler had already determined that Worker had reached MMI in regards to his physical injury.

{5} Worker has also experienced significant emotional problems resulting from his physical injuries. Since the accident, Worker has undergone psychological counseling and a regimen of anti-depressant medications, including Prozac, Paxil, and Serzone. In finding that Worker had reached MMI for his secondary mental impairment, the workers’ compensation judge (WCJ) relied upon the report of Dr. Timothy S. Strongin. Specifically, the WCJ found compelling Dr. Strongin’s opinion that Worker would reach MMI for his secondary mental impairment within six months of the resolution of litigation. This finding rests upon the WCJ’s implied conclusion that Worker’s continuing psychological dysfunction was caused not by his original physical injury, but by the litigation arising therefrom.

{6} However, Dr. Strongin appears to have equivocated as to whether Worker had reached MMI in regards to his secondary mental impairment. For example, while he concluded his report by stating that “[Worker] is found to be at maximum medical improvement for the period in which his case is adjudicated,” he further opined that “[Worker] will probably experience significant additional improvement within six months after his case is finally settled.” Furthermore, Dr. Strongin noted that: Worker’s prognosis “is poor until his medical and legal situation is resolved”; Worker’s “ongoing denial of loss is likely to inhibit psychotherapeutic progress”; and future counseling ought “to be problem-focused and specific, rather, than merely supportive.” Finally, Dr. Strongin testified at his deposition that “[a]t the time I saw him in September of 1996, his mental health condition appeared to be subject to change.”

{7} The record contains additional evidence from other examining mental health providers indicating that Worker’s mental condition was not “static and well stabilized.” For example, on January 31,1997, Dr. Edgar W. Waybright, a psychiatrist who treated Worker for “severe Post[-]traumatic Stress Disorder[,]” “Major Depression” and “possible Dementia,” wrote Worker’s attorney stating that Worker “has not reached maximum medical improvement with regard to the mental/emotional disorders resulting from his work injury!.]” Dr. Waybright further testified by affidavit that Worker had not reached psychological MMI as of April 1997. The record also contains a statement from Worker’s treating psychiatrist, Dr. Michael D. Muldawer, indicating that Worker had not reached psychological MMI as of April 1997. Dr. Barry L. Irons, a psychiatrist who saw Worker during the summer of 1997, noted in August that while Worker still suffered from major depression, he was “[bjenefitting from outpatient therapy.” Finally, Dr. Thomas C. Thompson wrote to Worker’s attorney in July 1997, to note that Worker “is clearly majorly depressed” and “needs considerable psychotherapeutic work in order to help him 1) accept the nature of the loss, which still has not occurred, and 2) begin to reorganize himself!.]”

{8} Upon this body of evidence, the WCJ found that Worker had reached MMI for both his primary physical and secondary mental impairments.

STANDARD OF REVIEW

{9} In reviewing the WCJ’s decision, we employ the whole record review. See Tollman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.1988). “We must find ‘evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency.’ ” Herman v. Miners’ Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991) (quoting National Council on Compensation Ins. v. New Mexico State Corp. Comm’n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988)); see also Herman, 111 N.M. at 553, 807 P.2d at 738 (noting that while whole record review does not allow appellate court to reweigh evidence, it does afford court “greater latitude to determine whether a finding of fact was reasonable based on the evidence”); Tollman, 108 N.M. at 128, 767 P.2d at 367 (“Whole record review ... contemplate^] a canvass by the reviewing court of all the evidence bearing on a finding or decision, favorable and unfavorable, in order to determine if there is substantial evidence to support the result.”).

MAXIMUM MEDICAL IMPROVEMENT

{10} The central issue on appeal is whether the record contains sufficient evidence to support the WCJ’s finding that Worker has reached MMI for his physical and secondary mental injuries. MMI is “the date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability as determined by a health care provider.” NMSA 1978, § 52-1-24.1 (1990).

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 030, 974 P.2d 1182, 126 N.M. 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-cutler-repaving-nmctapp-1999.