June 24, 2020- Alfred J. Martin, Jr. v. State of New Mexico, Human Services Department, No. A-1-CA-36527

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Worker-A ppellee/Cross-A ppellant, a
Mark Reynolds
v. No. A-1-CA-36527
STATE OF NEW MEXICO, HUMAN
SERVICES DEPARTMENT, and

RISK MANAGEMENT DIVISION,
Employer/Insurer-A ppellants/Cross-A ppellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
David L. Skinner, Workers’ Compensation J udge

Gerald A. Hanrahan
Albuquerque, NM

for Appellee
Paul L. Civerolo, L.L.C.
Evie M. Jilek
Albuquerque, NM
for Appellants
MEMORANDUM OPINION
MEDINA, Judge.
{1} State of New Mexico Risk Management Division (Employer), and Alfred J.
Martin (Worker) each appeal the Workers’ Compensation Judge’s (WC]’s) order
awarding Worker permanent total disability (PTD) benefits, loss of use benefits, and

attomey fees. Employer argues that: (1) Worker sustained only one compensable

2
accidental injury, entitling him to a single statutory cap of attorney fees; (2) Worker	1
is not entitled to PTD benefits because Worker’s impairment rating due to brain	2
injury improperly included 	impairments 	to 	other 	body parts 	and 	preexisting	3
impairments; and (3) loss of use benefits should not have been awarded in addition	4
to PTD. Worker, in turn, argues that the WCJ erred in failing to find a third	5
compensable accidental injury entitling Worker to an additional award of permanent	6
partial disability (PPD) benefits and attorney fees. We reverse in part and affirm in	7
part.	8
BACKGROUND	9
{2} 	Worker underwent a total knee replacement on his left knee in November	10
2009. On December 9, 2009, Worker slipped and fell on an icy sidewalk, disrupting	11
his knee replacement and causing further damage to the knee and tendons. The	12
parties stipulated that Worker’s fall arose out of and occurred in the course of his	13
employment. Worker underwent surgery to repair the damage to his left knee on	14
December 15, 2009. After surgery, Worker’s surgeon warned Worker that he would	15
likely suffer an infection due to the reopening of the surgical site within a month of	16
his knee replacement surgery. Due to persistent pain and signs that the prosthetic	17
materials were loose, Worker underwent another knee surgery on December 15,	18
2010, which included the complete removal of the left knee replacement components	19

3
and cement; insertion of a custom antibiotic cement mold; and insertion of calcium	1
phosphate antibiotic beads.	2
{3} 	Biopsies of tissue collected during surgery revealed bacterial infection in	3
Worker’s 	knee. 	The 	infection 	was 	treated 	with 	Daptomycin, 	administered	4
intravenously via a catheter (PICC line) inserted into Worker’s left knee. Worker	5
was discharged on December 19, 2010, with the PICC line in place. On December	6
29, 2010, Worker suffered a rare and unexpected reaction to the Daptomycin, which	7
developed into eosinophilic pneumonia and prolonged hypoxia. 1 Worker was	8
transported to the hospital where he lost consciousness and was placed on a	9
ventilator 	for 	ten 	days. 	Worker 	reported 	total 	blindness 	when 	he 	regained	10
consciousness. Worker’s vision returned three days later, and he was discharged on	11
January 11, 2011. Shortly after discharge, Worker’s PICC line was removed and he	12
was warned of the possibility of a pulmonary embolism. On January 28, 2011,	13
Worker suffered a pulmonary embolism and was again hospitalized. After discharge	14
on February 3, 2011, Worker began experiencing some memory loss, decreased	15
organizational skills, and an inability to retain some information. Worker also	16
1 Hypoxia is defined as “[t]he presence of less than the normal amount of
oxygen, as in the air, in the blood, in a tissue, in the lungs[.]” 3 J.E. Schmidt,
Attorneys’ Dictionary of Medicine and Word Finder H-284.1 (Matthew Bender
2008).

4
experienced vision problems including accelerated macular degeneration 2 and	1
trouble recognizing objects. Worker underwent two additional knee surgeries related	2
to his work accident, one on April 6, 2011, and another on September 13, 2011.	3
{4} 	Worker 	timely 	filed 	a 	complaint 	with 	the 	Workers’ 	Compensation	4
Administration (WCA), and a trial was held on February 10, 2017. Worker and his	5
wife testified at trial, and the WCJ admitted Worker’s Exhibits 1 through 16, without	6
objection. Those exhibits included: (1) Worker’s medical records; (2) an IME report	7
and addendum report; and (3) deposition testimony from Doctors Brian Shelly	8
(Family 	Medicine), 	Kenneth 	Adams 	(Ophthalmologist), 	Robert 	Reidy	9
(Ophthalmologist), and Kristen Reidy (Ophthalmologist). The WCJ also admitted	10
Employer’s Exhibits A through K without objection. Those exhibits included	11
additional medical records and deposition testimony from Doctors Don Seelinger	12
(neurology and electrodiagnostic medicine) and Rex Swanda (neuropsychologist),	13
as well as Worker’s deposition. After trial, the WCJ entered an order finding and	14
concluding, in pertinent part:	15
2 In 2007 before the events at issue in this case, Worker developed macular
degeneration in his right eye and showed early signs of macular degeneration in his
left eye. Worker’s treatment for his right eye consisted of monthly injections in his
right eye. Also in 2007 Worker suffered retinal detachment in both eyes. Worker’s
retinas were reattached and he showed no evidence of persistent vision loss due to
detachment. In December 2011 Worker’s left eye developed macular degeneration
and he began to receive injections in that eye as well. As of August 2016 Worker
continued 	to 	receive 	monthly 	injections 	in 	both 	eyes 	to 	treat 	the 	macular
degeneration.

5
1. 	Worker sustained [a] compensable injury to his left knee as a	1
result 	of 	an 	accident 	on 	December 	9, 	2009[,] 	and 	[a]	2
compensable injury to his brain as the result of a second	3
compensable accident on December 29, 2010[;]	4
. . . .	5
5. 	As a result of the work accident on December 9, 2009, and the	6
“catastrophic cascade of medical crises” that ensued as a direct	7
result of this accident, Worker suffered a brain injury as the result	8
of a second accident on December 29, 20[10;]	9
6. 	Worker sustained a brain injury resulting from a single traumatic	10
work-related injury that caused a permanent impairment of thirty	11
percent . . . or more as determined by the current AMA Guides	12
to the Evaluation of Permanent Impairment[;]	13
. . . .	14
8. 	Worker is entitled to permanent total disability (PTD) benefits[,]	15
pursuant to [NMSA 1978, Section] 52-l-25(A)(2) [(2003);]	16
. . . .	17
13. 	Worker has sustained a 75 percent partial loss of use of his left	18
knee. Worker is entitled to scheduled injury benefits at 75	19
percent or $501.91 per week for 150 weeks pursuant to [NMSA	20
1978, Section 52-l-43(A)(30), (B) (2003);]	21
. . . .	22
15. 	Worker’s attorney is entitled to an award of reasonable attorney	23
fees, plus tax[;]	24
. . . .	25
57. 	Solely due to the brain injury, and exclusive of . . . impairment	26
. . . to any other body part, or any preexisting impairments of any	27

6
kind, Worker has a 40 percent [Whole Person Impairment]	1
WPI to his visual system.3
2
The WCJ concluded that Worker suffered two separate and distinct accidental	3
injuries, and awarded two statutory caps of attorney fees, including tax, in the	4
amount of $48,290.63, pursuant to NMSA 1978, Section 52-1-54 (2003, amended	5
2013).	6
{5} 	Employer filed a motion to reconsider the WCA’s compensation order. The	7
WCJ denied Employer’s motion and issued an amended compensation order,	8
confirming its findings of facts and conclusions of law. The WCJ clarified that	9
“Worker presented [two] separate and distinct accidental injury claims allowing for	10
two separate and distinct awards of benefits under the [W]orkers’ [C]ompensation	11
[A]ct [(the Act)].” The WCJ also determined that Worker did not receive a double	12
recovery of benefits because the WCJ awarded loss of use benefits for Worker’s	13
knee injury and PTD benefits for his brain injury. Finally, the WCJ explained that	14
he calculated Worker’s impairment due to his brain injury “based on the totality of	15
the experts’ opinions.” These cross-appeals followed.	16
DISCUSSION	17
{6} 	The parties’ cross-appeals require this Court to address several issues. The	18
first issue is whether the WCJ correctly determined the number of compensable	19
3 The IME panel includes peripheral visual field, visual acuity, and cortical
processing when discussing Worker’s visual system.

7
accidental injuries Worker suffered, which in turn governs the WCJ’s ability to	1
award multiple caps of attorney fees. The second issue is whether the WCJ erred by	2
including Worker’s visual field and visual acuity impairments when assessing his	3
brain impairment. Third is whether the WCJ erroneously included preexisting	4
impairments when assessing Worker’s brain impairment. Last, we evaluate the	5
benefits awarded to Worker. In the course of discussing this issue, we address both	6
parties’ arguments regarding awards, including Employer’s assertion that loss of use	7
benefits cannot be awarded in addition to PTD benefits, as well as Worker’s	8
contention that the WCJ erred in failing to additionally award PPD benefits.	9
Standard of Review	10
{6} 	“In reviewing a workers’ compensation decision we evaluate whether, based	11
on the whole record, the decision is supported by substantial evidence.” Madrid v.	12
St. Joseph Hosp., 1996-NMSC-064, ¶ 38, 122 N.M. 524, 928 P.2d 250. “We review	13
the evidence in the light most favorable to the decision, and we defer to the WCJ’s	14
resolution of conflicts in the evidence.” Motes v. Curry Cty. Adult Det. Ctr., 2019-	15
NMCA-022, ¶ 14, 458 P.3d 557. “We review the WCJ’s application of the law to	16
the facts de novo.” Ruiz v. Los Lunas Pub. Schs., 2013-NMCA-085, ¶ 5, 308 P.3d	17
983. “We will affirm the WCJ’s decision if, after taking the entire record into	18
consideration and applying the law to the facts de novo, there is evidence for a	19
reasonable mind to accept as adequate to support the conclusion reached.” Flores v.	20

8
McKay Oil Corp., 2008-NMCA-123, ¶ 7, 144 N.M. 782, 192 P.3d 777 (internal	1
quotation marks and citation omitted).	2
I. 	Number of Compensable Accidental Injuries	3
{7} 	In order to put the parties’ arguments in context, we briefly set out the general	4
requirements for compensable accidental injuries and its relation to the awarding of	5
attorney fees under the Act. “[O]ur courts have long recognized that an ‘accidental	6
injury’ is an unlooked-for mishap or some untoward event that is not expected or	7
designed.” Griego v. Patriot Erectors, Inc., 2007-NMCA-080, ¶ 8, 141 N.M. 844,	8
161 P.3d 889 (internal quotation marks and citation omitted)). NMSA 1978, Section	9
52-1-28(A) (1987) provides:	10
A. 	Claims for workers’ compensation shall be allowed only:	11
(1) 	when the worker has sustained an accidental injury arising	12
out of and in the course of his employment;	13
(2) 	when 	the 	accident 	was 	reasonably 	incident 	to 	his	14
employment; and	15
(3) 	when the disability is a natural and direct result of the	16
accident.	17
Thus, for an accidental injury to be compensable under the the Act, it must “aris[e]	18
out of” and occur “in the course of” the worker’s employment. Id.; see Velkovitz v.	19
Penasco Indep. Sch. Dist., 1981-NMSC-075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (“For	20
an injury to be compensable it must be caused by an accident arising out of and in	21
the course of employment.” (internal quotation marks and citation omitted)).	22

9
{8} 	“ ‘Arising out of’ and ‘in the course of employment’ are two distinct	1
requirements.” Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2014-	2
NMCA-019, ¶ 8, 317 P.3d 866 (quoting Hernandez v. Home Educ. Livelihood	3
Program, Inc., 1982-NMCA-079, ¶ 9, 98 N.M. 125, 645 P.2d 1381). “For an injury	4
to arise out of employment, the injury must have been caused by a risk to which the	5
injured person was subjected in his employment.” Velkovitz, 1981-NMSC-075, ¶ 2.	6
“[A]n injury occurs in the course of employment when it takes place within the	7
period of employment, at a place where the employee may reasonably be, and while	8
the employee is reasonably fulfilling the duties of employment or doing something	9
incidental to it.” Schultz, 2014-NMCA-019, ¶ 8 (internal quotation marks and	10
citation omitted).	11
{9} 	The Act imposes a statutory cap on attorney fees per compensable accidental	12
injury. NMSA 1978, Section 52-1-54(E) (2003, amended 2013), provides, in	13
relevant part:	14
In all cases where compensation to which any person is entitled under	15
the provisions of the . . . Act is refused and the claimant thereafter	16
collects compensation . . . in an amount in excess of the amount offered	17
in writing by an employer . . . , the compensation to be paid the attorney	18
for the claimant shall be fixed by the [WCJ] hearing the claim . . .	19
subject to the limitation of Subsection I of this section.	20
Subsection I, in turn, provides:	21
Attorney fees, including, but not limited to, the costs of paralegal	22
services, legal clerk services and any other related legal services costs	23
on behalf of a claimant or an employer for a single accidental injury	24

10
claim . . . shall not exceed twenty-two thousand five hundred dollars	1
($22,500). This limitation applies . . . as a cumulative limitation on	2
compensation for all legal services rendered in all proceedings and	3
other matters directly related to a single accidental injury to a claimant.	4
(Emphases added.) Accordingly, the WCJ may only award—subject to an exception	5
not relevant to this case—up to $22,500 in attorney fees for each compensable	6
accidental injury the worker suffered. Id.; see Meyers v. W. Auto, 2002-NMCA-089,	7
¶ 27, 132 N.M. 675, 54 P.3d 79 (rejecting the worker’s argument that Section 52-1-	8
54(I) allows for a new attorney fees cap for each accidental injury claim, as opposed	9
to each accidental injury).	10
{10} 	Given this limitation on attorney fees, the parties dedicate the majority of their	11
briefing to the issue of the number of compensable accidental injuries that Worker	12
sustained. Both Worker and Employer argue that the WCJ miscalculated the number	13
of compensable accidental injuries (and consequently the amount of attorney fees).	14
Employer argues that there was only one underlying accidental injury: the December	15
9, 2009, slip and fall.4 Worker, on the other hand, argues that there were three	16
4 Worker contends that Employer’s argument is moot because Employer
already paid in full the awarded fees. Worker cites Montoya v. Zia Co., 1971-
NMCA-105, 82 N.M. 774, 487 P.2d 202, in which this Court determined the
worker’s claim that his employer failed to pay required monthly installments was
moot because the employer had since paid the installments and stated that it had no
intention to stop making payments. Id. ¶¶ 4-6. In the present case, however,
Employer argues that the WCJ erroneously granted multiple attorney fee awards
because it found two distinct compensable accidental injuries, an issue that has not
been resolved. Accordingly, Employer’s argument is not moot. See Gunaji v.
Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. (“A case is moot when

11
distinct accidental injuries: (1) his December 9, 2009, slip-and-fall; (2) his allergic	1
reaction to the Daptomycin requiring hospitalization on December 29, 2010; and (3)	2
the pulmonary embolism he suffered on January 28, 2011, following the removal of	3
his PICC line. We conclude that substantial evidence supports only one compensable	4
accidental injury (i.e., the initial December 9, 2009, slip-and-fall).	5
A. 	Worker’s 	December 	29, 	2010, 	Allergic 	Reaction 	and 	Subsequent	6
Hospitalization	7
{11} 	There is no dispute that Worker suffered a compensable injury when he	8
slipped and fell on December 9, 2009. We therefore address the sufficiency of the	9
evidence supporting the WCJ’s determination that Worker’s December 29, 2010,	10
allergic reaction to the Daptomycin evidenced a second compensable accident.	11
Employer contends that Worker’s December 29, 2010, allergic reaction to the	12
Daptomycin and subsequent hospitalization are compensable under the December 9,	13
2009, slip-and-fall but not as a separate accident because the evidence did not	14
establish a separate work accident. For the reasons that follow, we agree.	15
{12} 	With 	regard 	to 	the 	requirement 	that 	the 	accident 	must 	arise 	out 	of	16
employment, Worker does not point to, nor can we find, any evidence in the record	17
that his allergic reaction was “caused by a risk to which [Worker] was subjected [to]	18
in his employment.” Velkovitz, 1981-NMSC-075, ¶ 2; Lujan v. Payroll Express, Inc.,	19
no actual controversy exists, and the court cannot grant actual relief.” (internal
quotation marks and citations omitted)).

12
1992-NMCA-063, ¶ 20, 114 N.M. 257, 837 P.2d 451 (“To satisfy the ‘arising out	1
of’ test, a worker must be able to show that upon considering all the circumstances,	2
it is reasonably apparent that a causal connection exists between the working	3
conditions and the injury that results.”); see Rule 12-318(A)(4) NMRA (requiring	4
arguments to be supported with “citations to . . . [the] record proper, transcript of	5
proceedings, or exhibits relied on”). Because Worker fails to show that his injuries	6
arose from his employment we need not reach arguments raised by Worker regarding	7
the “in the course of” requirement, including the “traveling-employee” and “special	8
errands” exceptions. See Griego, 2019-NMCA-007, ¶ 9, 458 P.3d 523 (“The	9
principles ‘arising out of’ and ‘in the course of’ his employment must exist	10
simultaneously at the time of the injury in order for compensation to be awarded.”	11
(alteration, omission, internal quotation marks, and citation omitted)).	12
{13} 	In 	the 	absence 	of 	evidence 	that 	Worker’s 	allergic 	reaction 	requiring	13
hospitalization on December 29, 2010, arose out of Worker’s employment, the WCJ	14
erred in concluding that Worker suffered a separate compensable accidental injury	15
on December 29, 2010. See § 52-1-28(A). Therefore, it follows that the WCJ’s award	16
of a second cap of attorney fees was error. See § 52-1-54(I).5
17
5 Employer also points out that the WCJ—in its order granting in part and
denying in part Employer’s motion for reconsideration—appeared to indicate that it
granted the two statutory caps of attorney fees based on the number of accidental
injury claims that Worker brought. We need not separately address this issue because
if this were true, the WCJ’s decision would also be contrary to precedent and

13
B. 	Worker’s January 28, 2011, Pulmonary Embolism	1
{14} 	Worker also argues that the WCJ erred in not awarding a third cap of attorney	2
fees because the pulmonary embolism Worker suffered after removal of the PICC	3
line constituted a third compensable accident. However, Worker again fails to point	4
to, nor can we find, any evidence in the record showing that the pulmonary embolism	5
was “caused by a risk to which [Worker] was subjected [to] in his employment.”	6
Velkovitz, 1981-NMSC-075, ¶ 2. Consequently, Worker’s pulmonary embolism	7
does not qualify as a separate compensable accidental injury and therefore Worker	8
was not entitled to additional attorney fees.	9
{15} 	Worker appears to argue that his allergic reaction and pulmonary embolism	10
constituted separate accidental injuries because they were “natural and direct	11
result[s]” of his December 9, 2009, slip-and-fall. In doing so, Worker confuses the	12
requirements of Section 52-1-28(A)(3)—providing that a disability must be “a	13
natural and direct result of the accident”—with those of Section 52-1-28(A)(1).	14
Simply because a subsequent injury stems from a compensable accidental injury	15
does not, by itself, mean that the former constitutes a separate compensable	16
accidental injury entitling the worker to an additional cap of attorney fees. This is	17
not to say that Worker could not receive compensation for his disabilities stemming	18
constitute reversible error. See Meyers, 2002-NMCA-089, ¶ 27 (rejecting the
worker’s argument that Section 52-1-54(I) allows for a new attorney fees cap for
each accidental injury claim).

14
from his allergic reaction to the antibiotics and his pulmonary embolism following	1
the removal of his PICC line. As Employer concedes, these were compensable as	2
natural and direct results of the December 9, 2009, slip-and-fall. See § 52-1-	3
28(A)(3); Smith v. Arizona Pub. Serv. Co., 2003-NMCA-097, ¶ 18, 134 N.M. 202,	4
75 P.3d 418 (holding that employers must “provide compensation under the Act for	5
the totality of loss that proceeds as a natural and direct consequence of a work-related	6
injury”). Compare Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶¶ 21-30,	7
137 N.M. 497, 113 P.3d 320 (addressing liability of successive employers and	8
distinguishing 	two 	separate 	accidental 	injuries 	where 	subsequent 	injury 	and	9
disability stemmed from aggravation of the initial accidental injury), with Baca v.	10
Complete Drywall Co., 2002-NMCA-002, ¶¶ 15-19, 131 N.M. 413, 38 P.3d 181	11
(discussing an employer liability for delayed disabilities progressing from a worker’s	12
original injury and concluding that a worker suffered multiple disabilities from one	13
accidental injury).	14
{16} 	Worker also argues that his allergic reaction and pulmonary embolism	15
constituted 	compensable 	accidental 	injuries because 	they 	were 	“unlooked 	for	16
mishap[s].” In support of his argument Worker directs us to NMSA 1978, § 52-1-19	17
(1987), as well as Lyon v. Catron County Commissioners, 1969-NMCA-108, 81	18
N.M. 120, 464 P.2d 410 and Herndon v. Albuquerque Public Schools, 1978-NMCA-	19
072, 92 N.M. 635, 593 P.2d 470. However, Worker finds no support in the	20

15
authorities on which he relies. Whether an injury is an “unlooked for mishap” is only	1
relevant to the question of whether the injury was accidental, not whether the injury	2
arose out of and occurred in the course of the worker’s employment. See Griego,	3
2007-NMCA-080, ¶ 8. Because there was only one injury, Worker is entitled to only	4
one attorney fees award.6
5
II. 	Brain Injury	6
{17} 	The WCJ found, “Solely due to the brain injury, and exclusive of . . .	7
impairment to any other body part, or any preexisting impairments of any kind,	8
Worker has a 40 percent WPI to his visual system.” As defined by the IME panel,	9
Worker’s visual system includes his peripheral visual field, visual acuity, and	10
cortical processing.7 Employer argues that the WCJ erred as a matter of law by	11
6 In addition to substantive issues, Worker raises a policy argument criticizing
the Act’s statutory cap on attorney fees. While Worker may debate the merits of the
Legislature’s decision to impose a statutory cap on attorney fees, our role is to
construe the law as written, not to second-guess the Legislature’s policy decisions.
See State v. Maestas, 2007-NMSC-001, ¶ 14, 140 N.M. 836, 149 P.3d 933 (“We
adhere to the principle that a statute must be read and given effect as it is written by
the Legislature, not as the court may think it should be or would have been written
if the Legislature had envisaged all the problems and complications which might
arise in the course of its administration.” (alteration, internal quotation marks, and
citation omitted)).
7 Visual field is defined as “[t]he ability to detect objects in the periphery of
one’s visual environment, important for orientation and mobility.” American
Medical Association, Guides to the Evaluation of Permanent Impairment, 615 (6th
ed. 2009). Visual acuity is defined as “[t]he ability to recognize small objects with
high contrast, such as letters on a page, important for reading.” Id. Because Employer
appears to concede that impairment to Worker’s cortical visual system can be

16
including Worker’s visual field and visual acuity impairments when calculating	1
Worker’s 	impairment 	caused 	by a brain 	injury. Employer 	asserts 	that these	2
impairments resulted from damage to Worker’s retina, which Employer contends is	3
part of the eye—a scheduled body member under Section 52-1-43(A)(40)-(41), and	4
therefore should not have been included in Worker’s brain injury impairment	5
calculation under NMSA 1978, Section 52-1-25(A)(2) (2003). Worker responds that	6
the WCJ properly relied on expert testimony regarding visual system impairments	7
when calculating Worker’s brain injury impairment.	8
{18} 	Employer asks this Court to interpret Sections 52-1-25(A)(2) and 52-1-43 to	9
establish a broad legal distinction between interconnected body parts based on	10
generic statutory language and despite a consensus of expert medical testimony in	11
this case. “We review the interpretation of a statute de novo.” Molinar v. Larry Reetz	12
Constr., LTD., 2018-NMCA-011, ¶ 19, 409 P.3d 956. “The Court’s guiding principle	13
when construing statutes is to determine and give effect to legislative intent.” Fowler	14
v. Vista Care, 2014-NMSC-019, ¶ 7, 329 P.3d 630 (internal quotation marks and	15
citation omitted). To discern the Legislature’s intent, we “look first to the plain	16
language of the statute, giving the words their ordinary meaning, unless the	17
Legislature indicates a different one was intended.” Id. (internal quotation marks and	18
considered a brain impairment, we do not address the propriety of its inclusion in
the WCJ’s brain injury impairment finding.

17
citation omitted). We recognize that, Section 52-1-25(A)(2) requires that permanent	1
brain injury is to be determined “exclusive of the contribution to the impairment	2
rating arising from any other impairment to any other body part, or any preexisting	3
impairments of any kind,” and Section 52-1-43(A)(40)-(41) indicates that the “eye”	4
is “a specific body member.” However, Section 52-1-25(A)(2) does not define the	5
term “brain,” and Section 52-1-43 does not define the term “eye” but only establishes	6
distinct types of eye injuries. Indeed, nowhere in the Act are the terms “brain” or	7
“eye” defined, nor is the retina specifically distinguished as part of the eye. Employer	8
does not point to any other authority—or even a dictionary citation—establishing	9
such a distinction. While the Act does not provide specific guidance on the matter,	10
“[w]e consider the Act in its entirety, construing each section in connection with	11
every other section[,]” Molinar, 2018-NMCA-011, ¶ 19, in order to “produce a	12
harmonious whole.” Witcher v. Capitan Drilling Co., 1972-NMCA-145, ¶ 17, 84	13
N.M. 369, 503 P.2d 652 (internal quotation marks and citation omitted).	14
{19} 	Turning to other sections of the Act, we need not look far to find evidence that	15
the Legislature intended the use of medical expertise in workers’ compensation	16
cases. Section 52-1-28(B) provides that a “worker must establish . . . causal	17
connection as a probability by expert testimony of a health care provider . . .	18
testifying within the area of his expertise.” When construing NMSA 1978, Section	19
52-1-24(A) (1990), this Court concluded that the Act “requires the use of the AMA	20

18
Guides when determining whether a worker is impaired” and went on to hold that in	1
cases “requir[ing] some medical judgment in order to determine the degree of	2
impairment, the WCJ may not determine the worker's impairment rating without a	3
medical expert opinion.” Yeager v. St. Vincent Hosp., 1999-NMCA-020, ¶¶ 12, 17,	4
126 N.M. 598, 973 P.2d 850. The Act’s incorporation of AMA guidance and	5
required use of medical testimony to establish various statutory requirements	6
evidences an intent to utilize medical expertise to effect the provisions of the Act. In	7
turn it is reasonable to conclude that in the absence of any specific anatomical	8
definitions in the Act, the Legislature also intended the use of medical expertise to	9
address the nuances involved in human anatomy.	10
{20} 	Recognizing the nuance involved and that this matter required medical	11
expertise outside of his ability, the WCJ stated, “Calculation of the impairment due	12
to brain injury in this case is not at all straight forward[,] thus reliance on the totality	13
of the experts’ opinions was, in my opinion, a rational way to proceed.” We agree.	14
While “the opinion of an expert, even though uncontradicted, is not conclusive of	15
the fact in issue[,]” Chapman v. Jesco, Inc., 1982-NMCA-144, ¶ 3, 98 N.M. 707,	16
652 P.2d 257, “[t]he WCJ, as trier of fact, ultimately can accept or reject the evidence	17
once admitted.” Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 34,	18
134 N.M. 421, 77 P.3d 1014. In this case, the uncontradicted medical testimony	19
establishes the retina is part of the brain. Dr. Kenneth Adams of the IME panel	20

19
testified that “from an ophthalmology standpoint, the retina is a direct extension of	1
the brain.” Dr. Robert Reidy explained that “the retina itself . . . is the brain, in the	2
same fashion that your occipital cortex is your brain, your frontal cortex is your	3
brain, and your brainstem is your brain . . . the retina is the brain.” Dr. Kristen Reidy	4
opined that “[t]here’s no argument with any knowledgeable eye professional that the	5
retina is part of the brain.”	6
{21} 	The WCJ accepted uncontradicted expert medical evidence establishing the	7
retina as part of the brain. Absent statutory language clearly establishing the retina	8
as part of the eye—and given the Legislature’s intent to utilize medical expertise in	9
the application of the Act—we cannot say that it was error to do so. We therefore	10
conclude that, under the facts of this case, the WCJ did not err by including Worker’s	11
visual system impairments when calculating impairment due to brain injury.	12
III. 	Brain Impairment Calculation	13
{22} 	Employer argues that the WCJ erred by including Worker’s preexisting	14
impairments caused by macular degeneration in his determination of Worker’s brain	15
impairment. Employer also contends the WCJ did not consider that Dr. Adams	16
changed his initial evaluation of Worker’s visual field impairment after reviewing	17
previously unavailable medical records. Although we agree the WCJ likely included	18
preexisting impairments when he found Worker had 46 percent WPI due to Worker’s	19

20
brain injury, even without inclusion of the preexisting impairment, Worker’s WPI	1
was sufficient to satisfy the requirements of Section 52-1-25(A)(2). We explain.	2
{23} 	The IME panel initially assigned Worker a 46 percent WPI attributable to	3
traumatic brain injury, including 40 percent visual system impairment and 10 percent	4
central nervous system impairment (cognitive impairment). As mentioned above	5
Worker’s visual system impairment includes visual acuity impairment, visual field	6
impairment, and cortical impairment. Dr. Adams initially calculated Worker’s visual	7
field impairment as 22 percent, his visual acuity impairment as 28 percent, and	8
cortical impairment as 15 percent. However, Worker’s ophthalmology records prior	9
to 2013 were not available to Dr. Adams at the time of his evaluation. Because Dr.	10
Adams could not review Worker’s previous records, he acknowledged that it “is not	11
possible to know how much vision loss was due to acceleration of pre[]existing age	12
related macular degeneration.” Nevertheless, Dr. Adams estimated that 50 percent	13
of the visual field impairment and 50 percent of the visual acuity impairment were	14
attributable to a lack of oxygen following Worker’s adverse reaction to antibiotics	15
(i.e., the hypoxic event). In other words, Dr. Adams initially concluded that Worker	16
suffered 11 percent visual field impairment and 14 percent visual acuity impairment	17
(i.e., half of 22 percent and 28 percent) due to prolonged hypoxia.	18
{24} 	Employer later provided Dr. Adams Worker’s ophthalmology records that	19
were unavailable to the IME panel during its evaluation. After reviewing those	20

21
records, Dr. Adams stated that he would likely change his assessment of Worker’s	1
visual acuity impairment attributable to the hypoxic event to between 9 and 14	2
percent. Upon further questioning by Employer, Dr. Adams attributed 5 percent of	3
the revised 9 percent visual acuity impairment to Worker’s left eye, leaving the	4
balance of the impairment to the right eye. Dr. Adams did not change his evaluation	5
of Worker’s visual field impairment (11 percent) or cortical impairment (15 percent).	6
Accounting for his revised assessment, Dr. Adams testified that even if overall visual	7
acuity were reduced to 9 percent, Worker’s visual system impairment would be 31	8
percent, including the 11 percent visual field and 15 percent cortical impairments.	9
{25} 	In the compensation order, the WCJ initially acknowledged Dr. Adams’	10
testimony and seemingly adopted his revised evaluation, combining the amended 31	11
percent visual system impairment with Worker’s 10 percent cognitive impairment	12
for an overall 38 percent WPI (after adjustment per the AMA Guides). However, in	13
a subsequent finding, the WCJ appeared to incorporate the IME panel’s original	14
evaluation, finding that “Worker has a 40 [percent] WPI to his visual system.” The	15
WCJ then combined the 40 percent visual system impairment with the 10 percent	16
cognitive impairment for an overall 46 percent WPI. Based on finding 46 percent	17
impairment due to brain injury, the WCJ awarded permanent total disability (PTD)	18
benefits, pursuant to Section 52-1-25(A)(2).	19

22
{26} 	Dr. Adams—in both the addendum to the IME evaluation and in his	1
testimony—provided 	assessments, 	which 	attempted 	to 	account 	for 	Worker’s	2
preexisting macular degeneration. To the extent Employer argues that Worker’s	3
visual acuity impairment is attributable to the hypoxic event is limited to deficits in	4
the left eye alone, we note that at most, Dr. Adams opined that making such a	5
determination is difficult, but that it is reasonable to conclude that both of Worker’s	6
eyes were affected. Additionally, as discussed above, Dr. Adams attributed 5 percent	7
of his revised evaluation to deficits in the left eye and that impairment in the right	8
eye would be the remaining balance. Nevertheless, Dr. Adams concluded that	9
Worker at least suffered 9 percent impairment to his visual acuity as a whole due to	10
the hypoxic event. That this percentage varies by eye when broken down further is	11
inconsequential because the total accounts for estimated preexisting impairments in	12
each individual eye.	13
{27} 	While the WCJ’s finding that Worker suffered a 40 percent impairment to his	14
visual system appears to be in error, even when accounting for the revised	15
assessment, the evidence in this case established that Worker suffered at least a 31	16
percent impairment to his visual system exclusive of preexisting impairments. When	17
combined with Worker’s 10 percent cognitive impairment the evidence established	18
that Worker suffered a 38 percent WPI attributable to his traumatic brain injury, an	19
amount more than the minimum 30 percent required by Section 52-1-25(A)(2). See	20

23
id. (stating that a permanent total disability includes “a brain injury resulting from a	1
single traumatic work-related injury that causes, exclusive of the contribution to the	2
impairment rating arising from any other impairment to any other body part, or any	3
preexisting impairments of any kind, a permanent impairment of thirty percent or	4
more as determined by the current American medical association guide to the	5
evaluation 	of 	permanent 	impairment.” 	(emphasis 	added)). 	Because 	Worker’s	6
impairment due to brain injury meets the statutory requirements for the award of	7
PTD benefits, we conclude that the WCJ’s findings do not amount to reversible	8
error.	9
IV. 	Benefit Awards	10
{28} 	Finally, we address the WCJ’s award of benefits. Both Employer and Worker	11
appeal the WCJ’s award. Employer argues that the WCJ should not have awarded	12
loss-of-use benefits in addition to PTD benefits. Worker, on the other hand, argues	13
that the WCJ should have awarded PPD benefits in addition to loss of use and PTD	14
benefits. We address each argument in turn.	15
A. 	PTD and Loss of Use Benefits	16
{29} 	Employer contends that the WCJ erred by awarding loss-of-use benefits for	17
Worker’s knee injury in addition to PTD benefits for Worker’s brain injury, arguing	18
that “the award . . . is contrary to the purpose of the scheduled injury section and	19
departs from [New Mexico case law] determining that total disability precludes loss	20

24
of use benefits.” Our understanding of Employer’s argument is that Worker’s award	1
of loss-of-use benefits for his knee injury overlaps with his award of PTD benefits	2
for his brain injury. Although Employer cites a litany of cases to support this	3
argument, including Baca, 2002-NMCA-002, Valdez v. Wal-Mart Stores, Inc.,	4
1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, and Witcher 1972-NMCA-145,	5
Employer concedes that none of these cases directly support its position that a	6
worker should not receive loss-of-use benefits in addition to PTD benefits. Nor does	7
Employer attempt to explain how an award of loss-of-use benefits for an injury to a	8
specific body member under Section 52-1-43(A), overlaps with an award of PTD for	9
a brain injury under Section 52-1-25(A)(2), which must be determined “exclusive of	10
the contribution to the impairment rating arising from any other impairment to any	11
other body part.” Given Employer’s failure to develop a coherent argument against	12
the propriety to the WCJ’s award, we decline to address it any further. See Elane	13
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (stating that “[t]o	14
rule on an inadequately briefed issue . . . creates a strain on judicial resources and a	15
substantial risk of error”); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15,	16
137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at	17
what [a party’s] arguments might be.”).	18

25
B. 	PPD Benefits	1
{30} 	Worker also asserts that the WCJ erred in failing to award PPD benefits for	2
impairments caused by the removal of Worker’s PICC line and resulting pulmonary	3
embolism. Employer contends that Worker did not preserve this argument because	4
Worker failed to timely raise it below. In response, Worker argues that he preserved	5
this argument because the pleadings and evidence presented provided “[t]he factual	6
basis for finding multiple accidents[,]” and Worker fairly invoked a ruling by the	7
WCJ by raising the issue in his response to Employer’s motion to reconsider. We	8
agree with Employer that Worker failed to preserve his argument.	9
{31} 	“We will not review arguments that were not preserved[.]” Vill. of Angel Fire	10
v. Bd. of Cty. Comm’rs of Colfax Cty., 2010-NMCA-038, ¶ 15, 148 N.M. 804, 242	11
P.3d 371. “In order to preserve an issue for appeal, [a party] must have made a timely	12
and specific objection that apprised the [WCJ] of the nature of the claimed error and	13
that allows the [WCJ] to make an intelligent ruling thereon.” Sandoval v. Baker	14
Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d	15
791; see also Rule 12-321(A) NMRA (“To preserve an issue for review, it must	16
appear that a ruling or decision by the trial court was fairly invoked.”).	17
{32} 	The WCJ entered a pre-trial order in which the parties stipulated that if PTD	18
benefits were not awarded “Worker is entitled to . . . PPD benefits based upon his	19
whole person impairment plus modifier values[.]” Following trial, Worker submitted	20

26
proposed findings and conclusions related to PPD “only in the event that PTD	1
benefits are not awarded.” After the WCJ entered its compensation order in which	2
he 	awarded 	PTD 	and 	loss-of-use 	benefits, 	Employer 	filed 	a 	motion 	for	3
reconsideration seeking reconsideration of the award of loss-of-use benefits in	4
addition to PTD benefits. In response to Worker’s motion for reconsideration,	5
Worker argued, “If the [c]ompensation [o]rder is reconsidered, Worker requests a	6
finding that he sustained three separate and distinct accidental injuries and requests	7
an award of additional attorney fees due to having three accidental injury claims.”	8
At no time, however, did Worker argue that he was entitled to PPD benefits in	9
addition to the awarded PTD benefits.	10
{33} 	Without specifically arguing that impairment caused by his pulmonary	11
embolism necessitated a separate and additional award of PPD, Worker failed to	12
specifically apprise the WCJ of this claim and thus failed to invoke a ruling on this	13
issue. See Graham v. Cocherell, 1987-NMCA-013, ¶ 16, 105 N.M. 401, 733 P.2d	14
370 (“[W]e are a court of review and are limited to a review of the questions that	15
have been presented to and ruled on by the trial court.”); 	see also State v.	16
Vandenberg, 2003-NMSC-030, ¶ 52, 134 N.M. 566, 81 P.3d 19 (“In analyzing	17
preservation, we look to the arguments made by [the party] below.”). Nor could	18
Employer be expected to develop an argument or present evidence at trial in response	19
to an issue that was never raised until after trial. See Sandoval, 2009-NMCA-095,	20

27
¶ 56 (stating that one of the primary purposes for the preservation rule is “to allow	1
the opposing party a fair opportunity to respond to the claim of error and to show	2
why the court should rule against that claim”). This is especially true when the	3
parties stipulated to PPD as a contingent award only.	4
{34} 	The fact that Worker argued for an additional finding of a third compensable	5
injury for his pulmonary embolism in his response to Employer’s motion for	6
reconsideration does not change our conclusion. First, Worker’s discussion of the	7
pulmonary embolism did not include a request for additional PPD benefits but only	8
an award of additional attorney fees. Therefore, the WCJ cannot be said to have been	9
“apprised . . . of the nature of the claimed error [or allowed] to make an intelligent	10
ruling thereon.” See id. Second, even if Worker’s response was sufficient to apprise	11
the court of the PPD issue, raising an issue that could have, and should have, been	12
argued during trial in a post-trial motion is generally considered insufficient to	13
preserve the issue. Cf. id. (“Generally, a motion for a new trial cannot be used to	14
preserve issues not otherwise raised during the proceedings.”).	15
{35} 	Finally, Worker summarily argues that this Court should nonetheless address	16
his argument under the general public interest or plain error exceptions to our	17
preservation 	requirement 	See 	Rule 	12-321(B)(2) 	(listing 	exceptions 	to 	the	18
preservation requirement). However, Worker fails to explain how our decision on	19
this issue would “affect[] the interests of the [s]tate at large or affects the law that	20

28
will be applied to a large number of cases in the near future.” O’Neel v. USAA Ins.	1
Co., 2002-NMCA-028, ¶ 21, 131 N.M. 630, 41 P.3d 356. Nor does Worker explain	2
how any purported error by the WCJ in failing to additionally award PPD benefits	3
constituted plain error by “seriously affect[ing] the fairness, integrity or public	4
reputation of judicial proceedings.” Living Cross Ambulance Serv., Inc. v. N.M. Pub.	5
Regulation Comm’n, 2014-NMSC-036, ¶ 11, 338 P.3d 1258 (internal quotation	6
marks and citation omitted). Accordingly, we decline to invoke either of these	7
exceptions 	to 	the preservation 	requirement 	and 	decline 	to 	address 	Worker’s	8
contention that the WCJ erred in not also awarding PPD benefits.	9
CONCLUSION	10
{36} 	For the foregoing reasons, we reverse the WCJ’s finding that Worker suffered	11
two compensable accidental injuries and its corresponding additional award of	12
attorney fees, and we remand for the limited purpose of determining the appropriate	13
attorney fees in accordance with this opinion. We affirm the WCJ’s award of PTD	14
benefits and loss of use benefits.	15
{37} 	IT IS SO ORDERED.	16
____________________________________	17
JACQUELINE R. MEDINA, Judge	18

1
WE CONCUR:
Kristina Bogardus
KRISTINA BOGARDUS, Judge
Bianca Primera BRIANA H. ZAMORA, Judge
29
4 5 2 3