February 6, 2020- Rudy Salazar v. Los Alamos National Laboratory, No. A-1-CA-37035

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
RUDY SALAZAR,	2
Worker-Appellant,	3
v. 	No. A-1-CA-37035	4
LOS ALAMOS NATIONAL	5
LABORATORY,	6
Self-Insured Employer-Appellee.	7
APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION	8
Rachel A. Bayless, Workers’ Compensation Judge	9
Lucia Misa-O’Connor	10
Albuquerque, NM	11
Barnhill Law Offices, L.L.C.	12
Lynn A. Barnhill	13
Santa Fe, NM	14
for Appellant	15
Lynn & Associates, LLC	16
Phyllis Savage Lynn	17
Douglas C. Christopherson	18
Albuquerque, NM	19
for Appellee	20
MEMORANDUM OPINION	21
MEDINA, Judge.	22
{1} 	Worker Rudy Salazar (Worker) filed for worker’s compensation benefits	23
following an injury sustained while employed with Los Alamos National Laboratory	24
Court of Appeals of New Mexico
Filed 2/6/2020 11:04 AM

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(Employer). The Workers’ Compensation Judge (WCJ) awarded him benefits based	1
on an impairment rating of one percent. Worker appeals the WCJ’s order contending	2
the WCJ’s impairment rating is inaccurate. We affirm.	3
BACKGROUND	4
{2} 	On May 14, 2014, Worker injured his left shoulder while carrying metal	5
planks at work. Worker timely filed for workers’ compensation benefits. Employer	6
did not dispute that Worker was injured during his employment but rather contested	7
the extent of Worker’s impairment.	8
{3} 	The WCJ held a formal hearing on the merits on December 4, 2017, to	9
determine Worker’s accurate impairment rating, pursuant to NMSA 1978, Section	10
52-1-24(A) (1990). Worker’s Exhibits 1 through 4, which the WCJ admitted without	11
objection, included Worker’s medical records, deposition testimony from his	12
treating physician, Dr. Miguel Pupiales (Dr. Pupiales), an independent medical	13
examiner (IME) report from Dr. Richard Castillo and Dr. William Ritchie (Dr.	14
Ritchie), and an excerpt from the American Medical Association Guides to the	15
Evaluation of Permanent Impairment, Sixth Edition (AMA Guides). Worker’s	16
medical 	records 	showed 	that 	Dr. 	Pupiales 	calculated 	Worker’s 	whole 	body	17
impairment based on the “range of motion rating method” and assigned Worker a	18
whole body impairment of nine percent. Employer’s Exhibits A through H were also	19
admitted without objection. These exhibits included various medical and physical	20

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therapy records, deposition testimony from Dr. Paul Legant and Dr. Ritchie,	1
Worker’s wage records, an IME report, and an excerpt from the AMA Guides. Dr.	2
Legant’s records stated that he relied on the “diagnosis-based method” to calculate	3
Worker’s impairment and assigned a two percent left upper extremity impairment,	4
which converts to a one percent whole person impairment rating.	5
{4} 	The WCJ found that the “diagnosis-based method” for calculating Worker’s	6
impairment used by Dr. Legant was the appropriate method and, therefore, Worker	7
was entitled to benefits at his whole person impairment rating of one percent. The	8
WCJ explained her conclusion as follows:	9
Based on the totality of evidence, including medical records, the	10
various discrepancies in range of motion documented by multiple	11
providers, Dr. Pupiales’ failure to measure Worker’s passive range of	12
motion concurrently with active range of motion as required by the	13
AMA Guides, concerns as to the credibility of Dr. Pupiales, Worker’s	14
lack of credibility, and the Court’s observations of Worker during trial,	15
the diagnos[is]based method was the appropriate way to calculate	16
Worker’s impairment for his left shoulder and upper arm strain injury.	17
{5} 	This appeal followed.	18
DISCUSSION	19
{6} 	Worker challenges the WCJ’s determination that he is entitled to benefits at a	20
whole person impairment rating of one percent. Specifically, Worker contends the	21
WCJ erred when she relied on Dr. Legant’s impairment rating rather than Dr.	22
Pupiales’s, and in doing so failed to consider relevant evidence. For the reasons that	23
follow, we disagree.	24

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{7} 	“[W]e review the whole record to determine whether the WCJ’s findings and	1
award are supported by substantial evidence.” Molinar v. Larry Reetz Constr., Ltd.,	2
2018-NMCA-011, ¶ 20, 409 P.3d 956 (internal quotation marks and citation	3
omitted). “Substantial evidence is credible evidence in light of the whole record that	4
is sufficient for a reasonable mind to accept as adequate to support the conclusion.”	5
Maez v. Riley Indus., 2015-NMCA-049, ¶ 9, 347 P.3d 732 (alteration, internal	6
quotation marks, and citation omitted). “We disregard that evidence which has little	7
or no worth and then decide if there is substantial evidence in the whole record to	8
support 	the 	agency’s 	finding 	or 	decision.” 	Molinar, 	2018-NMCA-011, 	¶ 	20	9
(alterations, 	internal 	quotation 	marks, 	and 	citation 	omitted). 	“Where 	all 	or	10
substantially all of the evidence on a material issue is documentary or by deposition,	11
the reviewing court will examine and weigh it, and will review the record, giving	12
some weight to the findings of the court on such issue, and will not disturb the same	13
upon conflicting evidence unless such findings are manifestly wrong or clearly	14
opposed to the evidence.” Id. (alterations, internal quotation marks, and citation	15
omitted). “We review the WCJ’s application of the law to the facts de novo.” Id.	16
{8} 	In this case, the WCJ reviewed expert deposition testimony from both Dr.	17
Legant and Dr. Pupiales. The respective depositions discussed the divergent	18
impairment ratings, differing methods used to evaluate Worker’s impairment, and	19
applicable AMA Guides regarding impairment evaluation methods.	20

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{9} 	Dr. Legant opined that the “diagnosis-based method” of evaluation was the	1
appropriate method for evaluating Worker’s injury, stating that while the AMA	2
Guides provide that either method may be used to evaluate a shoulder injury, the	3
AMA Guides also recommend that the “range of motion” method should only be	4
used in specific circumstances and in the absence of a better available method. Dr.	5
Legant testified that he did not believe that Worker’s injury was of the specific type	6
described in the AMA Guides warranting use of the “range of motion” method.	7
Further, though he noted that he believed Worker’s range of motion was normal, Dr.	8
Legant gave Worker the benefit of the doubt that Worker had a decreased range of	9
motion and adjusted the evaluation accordingly. By contrast, Dr. Pupiales opined	10
that in the presence of a range of motion deficit the “diagnosis-based method” cannot	11
be used. He further stated that because several of Worker’s providers had identified	12
range of motion deficits the AMA Guides indicated that use of the “range of motion”	13
method was appropriate.	14
{10} 	In support of its decision, the WCJ also reviewed expert deposition testimony	15
from Dr. Ritchie of the IME panel who assessed the evaluations performed by Dr.	16
Legant and Dr. Pupiales. After reviewing Dr. Legant’s evaluation, Dr. Ritchie	17
opined that use of the “diagnosis-based method” was reasonable given Dr. Legant’s	18
conclusion that Worker did not have consistent range of motion impairments. On the	19
other hand, Dr. Ritchie identified multiple issues with Dr. Pupiales’s evaluation,	20

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including possible inaccuracies in scoring and a miscalculation of Worker’s range	1
of motion grade modifier. Dr. Ritchie testified that determining which impairment	2
evaluation method to use depends on whether the patient has full range of motion,	3
and that ultimately use of one method of evaluation over another depends on the	4
doctor’s belief in the veracity of the patient at the time of the exam.	5
{11} 	When testimony from Worker’s treating physicians conflicts, we have held	6
that “a WCJ may choose between experts’ conflicting opinions of a worker’s	7
impairment rating.” Yeager, 1999-NMCA-020, ¶ 13. Indeed, “[w]here evidence is	8
conflicting, the ultimate decision concerning the degree of a worker’s impairment	9
and disability rests with the [WCJ].” Madrid v. St. Joseph Hosp., 1996-NMSC-064,	10
¶ 19, 122 N.M. 524, 928 P.2d 250; Wood v. Citizens Standard Life Ins. Co., 1971-	11
NMSC-011, ¶ 16, 82 N.M. 271, 480 P.2d 161 (holding that the trier of fact	12
determines weight and credibility even where the conflicting testimony was given	13
by medical experts). Accordingly, we conclude that substantial evidence supports	14
the WCJ’s ruling that the “diagnosis-based method” of evaluation was appropriate	15
and therefore Worker was entitled to benefits at his whole person impairment rating	16
of one percent.	17
{12} 	Worker makes several arguments against this conclusion. First, Worker	18
contends that the WCJ “emphasized that . . . Worker’s range of motion had been	19
noted as ‘normal’ by Worker’s providers,” but that she “omitted to conclude the fact	20

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that there were more providers that noted the decrease in range of motion to	1
Worker’s left shoulder.” The record shows that the WCJ discussed each providers’	2
findings 	at 	different 	stages 	of 	Worker’s 	treatment. 	In 	citing 	the 	“various	3
discrepancies” in ranges of motion noted by each provider, the WCJ also considered	4
the totality of the evidence, including medical records, Worker’s lack of credibility,	5
and the WCJ’s observations of Worker during trial before concluding that the	6
diagnosis-based method was the appropriate way to calculate Worker’s impairments.	7
We are not persuaded that the WCJ erred, particularly given the divergent findings	8
noted by Worker’s providers, including one in which the provider deemed Worker’s	9
claimed disability as marginally reliable.	10
{13} 	Next, Worker argues that the WCJ did not consider the objective measurement	11
criteria used by Dr. Pupiales as compared to the methods employed by Dr. Legant.	12
This argument is unfounded. The WCJ explicitly discussed the methods used by both	13
doctors and made findings of fact as to each. With regard to Dr. Pupiales’s	14
evaluation, the WCJ questioned both his methods and credibility, citing a failure to	15
evaluate Worker’s passive range of motion, miscalculation of Worker’s range of	16
motion, and conflicting testimony regarding Worker’s warm up and lack of referral	17
to physical therapy.	18
{14} 	Worker also contends that the WCJ erred as a matter of law by interpreting	19
the AMA Guides to conclude that Dr. Legant’s “diagnosis-based method” of	20

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evaluation was the more appropriate method to determine Worker’s impairment	1
rating. We understand Worker to contend that our review should include a de novo	2
analysis of the medical testimony under the AMA Guides. However, Worker does	3
not cite any authority demonstrating that our Court engages in such analysis.	4
Accordingly, we decline Worker’s invitation to analyze the evidence in light of the	5
AMA Guides de novo. See Curry v. Great Nw.t Ins. Co., 2014-NMCA-031, ¶ 28,	6
320 P.3d 482 (“Where a party cites no authority to support an argument, we may	7
assume no such authority exists.”).	8
{15} 	Lastly, Worker appears to argue that the AMA Guides is compulsory such that	9
any deviation may be characterized as error. Worker again fails to present supporting	10
authority or to adequately develop this argument. Our review of applicable case law	11
indicates that our courts have consistently held that “[t]he AMA Guide[s] is a general	12
framework, requiring flexibility in its application.” Madrid, 1996-NMSC-064, ¶ 19;	13
Yeager, 1999-NMCA-020, ¶¶ 12-13 (“We recognize that the AMA Guides were	14
specifically developed to bring greater objectivity to estimating the degree of a	15
worker’s permanent impairment but note that the AMA Guides do not establish a	16
rigid formula that must be followed.” (citation omitted)). Moreover, with specific	17
regard to impairment ratings, we have held that “a WCJ has some discretion in	18
applying the AMA Guides and determining the appropriate impairment rating.”	19
Yeager, 1999-NMCA-020, ¶ 13.	20

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{16} 	Where we have previously found error on the part of the WCJ, the WCJ’s	1
finding for one impairment rating over another involved a nondiscretionary medical	2
decision. See, e.g., Chavarria v. Basin Moving & Storage, 1999-NMCA-032, ¶¶ 15-	3
19, 22-27, 127 N.M. 67, 976 P.2d 1019 (concluding that the WCJ’s assignment of	4
an impairment rating was error to the extent it conflicted with a nondiscretionary	5
clear directive in the AMA Guides or was based on a misapplication of the statute).	6
As Worker does not argue that the issue here involved a nondiscretionary medical	7
decision but rather that one method of evaluation was more appropriate than the	8
other, we conclude there was no error in the WCJ’s conclusion that the “diagnosis-	9
based method” of evaluation was appropriate.	10
CONCLUSION	11
{17} 	For these reasons we affirm.	12
{18} 	IT IS SO ORDERED.	13
______________________________	14
JACQUELINE R. MEDINA, Judge	15
WE CONCUR:	16
________________________	17
LINDA M. VANZI, Judge	18
________________________	19
JULIE J. VARGAS, Judge	20