January 31, 2019- Ramona Mendez v. McDonalds, No. A-1-CA-37197

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IN Thw ~JU..T OF APPEALS GC. THE STATE Gi NEWM XICO
Court of Appeals of New Mexico

RAMONA MENDEZ, Filed 1/31/2019 8:07 AM
f
Worker-Appellant/Cross-Appellee, Ad. anal
Mark Reynolds
V. NO. A-1-CA-37197
McDONALDS and FOOD INDUSTRY

SELF-INSURANCE FUND,
Employer/Insurer-Appellees/Cross- Appellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Leonard J. Padilla, Workers’ Compensation Judge

Peter D. White
Santa Fe, NM

for Appellant/Cross-Appellee
Paul L. Civerolo, L.L.C.
Paul L. Civerolo
Albuquerque, NM
for Appellees/Cross-Appellants
MEMORANDUM OPINION
VANZI, Judge.
a3 Worker appeals and Employer/Insurer cross appeals from a compensation

order. We previously issued two notices of proposed summary disposition in which

we proposed to uphold the WCJ’s determinations. Both Worker and Employer/Insurer

1 have 	filed 	a memorandum in opposition. 	After due consideration, we remam
2 unpersuaded by the assertions of error. We therefore affirm.
3 	{2} 	Because the relevant background information and authorities have previously
4 been set forth, we will avoid undue reiteration here, and focus instead on the content
5 of the parties' responsive memoranda.
6 	{3} 	We will begin with Worker's memorandum in opposition, in which she
7 continues to argue that the WCJ erred in the assignment of skills points. [W MIO 1-3]
8 Worker previously asserted that the evidence was insufficient to establish that she
9 successfully performed the vocation of hotel housekeeper, as defined by the U.S.
10 Department of Labor's Dictionary of Occupational Titles, and as such, Worker has
11 	argued that the WCJ's application of six skills points was erroneous. We previously
12 	accepted Worker' s assertion relative to the evidence presented below. [2nd CN 3]
13 	Nevertheless, as we observed in the second notice of proposed summary disposition,
14 the evidence that Worker successfully performed the vocation of a fast food cook
15 	supports the same result. [2nd CN 3-4] See generally Hawkins v. McDonald 's, 2014-
16 NMCA-048,, 23 , 323 P.3d 932 ("[W]e [may] affirm the award of modifier-based
17 	PPD benefits under the right for any reason doctrine." ). In her memorandum in
18 	opposition 	Worker 	contends that our reliance 	upon 	this 	alternative 	basis 	for
19 	affirmance is improper because the WCJ did not enter specific findings on this and
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1 because the evidence was conflicting. [W MIO 2-3] We are unpersuaded. Under the
2 right for any reason doctrine, we may affirm the compensation order on grounds not
3 relied upon by the WCJ if those grounds do not require us to look beyond the factual
4 allegations that were raised and considered below. Id. 	(citing State v. 	Vargas,
5 2008-NMSC-019, ,r 8, 143 N.M. 692, 181 P.3d 684). See generally Flemma v.
6 Halliburton Energy Servs., Inc., 2013-NMSC-022, ,r 13,303 P.3d 814 ("Where the
7 issue to be determined rests upon interpretation of documentary evidence, this Court
8 is in as good a position as the trial court to determine the facts and draw its own
9 conclusions." (internal quotation marks and citation omitted)). The record before us
10 clearly reflects that Worker's performance of the vocation of fast food cook was
11 	raised and considered below. [RP 109,131, 141]Moreover, Worker'sownproposed
12 	findings of fact reflect that she worked as "crew person" at a fast food restaurant,
13 	where her duties included "frying food, grilling food, and working on the kitchen's
14 assembly line." [RP 109] This is consistent with the job of fast food cook, as
15 	described in the Dictionary of Occupational Titles, DOT 313.374-010 (describing a
16 	fast food cook as one who "[p ]repares and cooks to order foods requiring short
17 preparation time"). We do not hesitate to hold Worker to the position that she took
18 	on this matter below. See generally Cordova v. Taos Ski Valley, Inc., 1996-NMCA-
19 	009, ,r,r 13-14, 121 N.M. 258, 910 P.2d 334 (describing the function of proposed
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1 findings and explaining that they narrow the scope of the issues and arguments that
2 will be considered on appeal). Although Worker contends that her duties were more
3 consistent with the job of a "fast-foods worker," DOT 311.472-010, [W MIO 2] the
4 Dictionary of Occupational Titles defines that to principally entail taking customer
5 orders, depressing keys of multi counting machines, selecting requested food items
6 from serving or storage areas, and assembling them on serving trays or in takeout
7 bags. This is not consistent Worker's own description of her duties. [RP 109] We
8 therefore reject Worker's position, and we uphold the WCJ's ultimate assignment of
9 skills points on the alternative grounds previously discussed.
10 	{4} 	We tum next to Employer/Insurer's memorandum in opposition, in which it
11 	continues to argue that the WCJ erred in characterizing Worker's usual and customary
12 	work as heavy. [E/I MIO 1-7] Employer/Insurer asserts that Worker's usual and
13 	customary work is more appropriately regarded as medium-duty, principally because
14 	she performed medium-duty work for a longer period of time. [Id.] We agree that the
15 	WCJ could have arrived at the determination Employer/Insurer advocates; however,
16 that is not the nature of our inquiry on appeal. Medina v. Berg Cons tr. , Inc., 1996-
17 NMCA-087, ,r 19, 122 N.M. 350, 924 P.2d 1362 ("[T]he issue on appeal is whether
18 	the finding made by the WCJ is supported by substantial evidence, not whether the
19 evidence would have supported different findings."). As we previously observed,
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1 [2nd CN 5] evidence was also presented that Worker was required to lift objects
2 weighing 50 poundsas a regular component of one of the jobs that she held for years;
3 and as such, Worker had significant employment history performing heavy work. [RP
4 	165] The WCJ was at liberty to duly consider this. See Levario v. Ysidro Villareal
5 Labor Agency, 1995-NMCA-133, ,r 14, 120N.M. 734,906 P.2d 266 (explaining that
6 in this context, the WCJ may consider the worker's entire work history). And
7 ultimately, given the factual nature of the inquiry, as well as the standard of review,
8 we conclude that the WCJ' s determination is affirmable. See generally Moya v. City
9 ofAlbuquerque, 2008-NMSC-004, ,r 6, 143 N.M. 258, 175 P.3d 926 ("The physical
10 capacity determination . . . is an issue of fact and . . . the fact finder has the
11 	prerogative to determine the weight and credibility to be given to testimony and
12 	evidence." (citations omitted)).
13 	{5}
14 	{6}
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Accordingly, for the reasons stated, we affirm.
IT IS SO ORDERED.
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1 |WE CONCUR:
S. Mutui
J. MILES HANISEE, Judge
JENNIFER L. ATTREP, Judge
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