A-1-CA-35889 | Omnilex

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Court of Appeals of New Mexico
Filed 3/28/2019 11:16 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

KATHY BLAKELY, Filed 3/28/2019 11:16 AM
MnP
Worker-Appellant, Mark Reynolds
v. No. A-1-CA-35889
LOVELACE HOSPITAL and
HARTFORD INSURANCE
COMPANY OF THE MIDWEST,

Employer/Insurer-Appellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers’ Compensation Judge

Dunn Law Offices
Rod Dunn

Rio Rancho, NM
for Appellant
Camp Law, LLC
Minerva Camp

Albuquerque, NM

for Appellees

MEMORANDUM OPINION
HANISEE, Judge.
{1}. Worker Kathy Blakely appeals from the September 1, 2016, Workers’

Compensation Judge’s (WCJ) compensation order awarding her temporary total

disability (TTD) benefits from April 17, 2015, to January 29, 2016, following an
accident she suffered at work. Worker contends that the WCJ’s order—specifically
its findings and conclusions regarding the date Worker reached maximum medical
improvement (MMI) for her work-related right hip injury and the overall
compensability of that injury—is not supported by substantial evidence. Concluding
that the whole record does not support the WCJ’s ruling, we reverse and remand for
further proceedings.

BACKGROUND

{2} On April 17,2015, Worker, a registered nurse employed by Lovelace Hospital
(Employer), was injured in a work-related accident when a patient she was assisting
grabbed her arm and pulled her down, causing Worker to hit her right hip and lower
back on a toilet. Worker experienced immediate pain in her right hip and back and
was referred by Employer to Concentra Medical Center, where she was seen by Dr.
David Lyman. Worker received medical treatment and care from various providers,
including Dr. Lyman, Dr. Evan Knaus, and Dr. Arnold Kiburz, in the months
following the accident and was eventually taken off of work completely by Dr.
Lyman on June 30, 2015, based upon her complaints of worsening pain.

33 On January 25, 2016, Employer filed a complaint with the Workers’
Compensation Administration (WCA) seeking a determination of compensability

and benefits, a suspension or reduction of benefits, and a credit for overpayment.

Employer filed the complaint “in the interest [of] .. . see[ing] whether Worker’s
injuries have reached [maximum medical improvement (MMI)]” and indicated that
it was “contemplat[ing] whether a six month re[]evaluation[] with Dr. Lyman .. .
would be helpful to assess Worker’s achievement of MMI.” Employer alternatively
posited that an independent medical examination (IME) “may be helpful to allow an
objective provider .. . to give clinical opinions on treatment recommendations and
achievement of MMI.” Neither a reevaluation by Dr. Lyman nor an IME ever
occurred.

43 At the trial held on August 15, 2016, the depositions of Drs. Lyman and
Knaus—the only treating physicians of Worker who were deposed—were admitted
into evidence. Also admitted were medical records from various physicians and a
form letter to health care provider completed by Dr. Kiburz.

{5} In its compensation order, the WCJ first found that Worker “suffered an on-
the-job accident on April 17, 2015” in which she “injured her low back and right
hip.” Regarding Worker’s right hip, the WCJ found that “Worker suffered a
pre[Jexisting right hip injury” and that she “did not suffer problems to her right hip
other than a temporary exacerbation” of that preexisting injury. The WCJ
additionally found that “Worker reached [MMI]” for the right-hip-exacerbation
injury “with no permanent impairment[,]” but provided no specific date of MMI for

that injury. The WCJ separately found that “Worker reached [MMI] for all

conditions no later than January 29, 2016.” The WCJ also found that “[t]he opinion
of Dr. Kiburz . .. is that Worker’s current right hip complaints are not causally
related to the . . . work accident[,]” an opinion that the WCJ “accepted.” From the
foregoing, the WCJ concluded that Worker “is not entitled to additional benefits for
her right hip.” Worker appealed.

DISCUSSION

6} Neither party challenges the WCJ’s determination of benefits with respect to
Worker’s back-related injury. ' Thus, the only issue we address in this appeal is
whether the record supports the WCJ’s findings and conclusions regarding the
compensability of Worker’s right hip injury.

{7} Worker argues that substantial evidence does not support the WCJ’s findings
that (1) Worker had a preexisting right hip injury, (2) the only injury to the right hip
that Worker suffered was a temporary exacerbation of her preexisting injury, and (3)
Worker had reached MMI for that injury. Worker, therefore, contends that the
WCJ’s conclusion that Worker is entitled to no additional benefits for her right hip
injury cannot be sustained. We agree with Worker that the WCJ’s ruling regarding

Worker’s right hip is, on the whole, unsupported, requiring reversal and remand.

'To the extent we discuss issues and evidence related to Worker’s back injury,
we do so only to provide context for our analysis of the compensability of Worker’s
right hip injury.

Standard of Review

{8} “We review workers’ compensation orders using the whole record standard
of review.” Leonard v. Payday Prof’l, 2007-NMCA-128, § 10, 142 N.M. 605, 168
P.3d 177. “In applying whole record review, this Court reviews both favorable and
unfavorable evidence to determine whether there is evidence that a reasonable mind
could accept as adequate to support the conclusions reached by the fact[-]finder.”
Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, 4 15, 120 N.M. 734,
906 P.2d 266. While “this Court is not empowered to choose between two fairly
conflicting views, even though the court would justifiably have made a different
choice had the matter been before it de novo,” Trujillo v. Los Alamos Nat'l Lab.,
2016-NMCA-041, 945, 368 P.3d 1259 (internal quotation marks and citation
omitted), cert. denied, 2016-NMCERT-___, (No. S-1-SC-35805, Apr. 7, 2016), an
administrative agency’s findings “must . . . be set aside when the record before the
reviewing court precludes the agency’s decision from being justified by a fair
estimate of the worth of the testimony of witnesses[.]” Tallman v. ABF (Arkansas
Best Freight), 1988-NMCA-091, 916, 108 N.M. 124, 767 P.2d 363 (internal
quotation marks and citation omitted). We will set aside a workers’ compensation
judge’s findings of fact only if “they are shown to be clearly erroneous or not
supported by requisite evidence.” St. Clair v. Cty. of Grant, 1990-NMCA-087, {[ 30,

110 N.M. 543, 797 P.2d 993.

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{9} “The reviewing court starts out with the perception that all evidence,
favorable and unfavorable, will be viewed in the light most favorable to the agency’s
decision.” Tallman, 1988-NMCA-091, ¥ 18. “This would, however, not preclude the
court from setting aside the agency decision when it cannot conscientiously say that
the evidence supporting the decision is substantial, when viewed in the light that the
whole record furnishes.” /d. “To determine whether a finding of fact is amply
supported by the whole record, we do not rely solely on one part of the evidence if
to do so would be unreasonable.” Herman v. Miners’ Hosp., 1991-NMSC-021, 4 6,
111 N.M. 550, 807 P.2d 734. “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.” /d. (internal quotation marks and
citation omitted). “Substantial evidence on the record as a whole is evidence
demonstrating the reasonableness of an agency’s decision.” Begay v. Consumer
Direct Pers. Care, 2015-NMCA-025, 76, 344 P.3d 1083 (alteration, internal
quotation marks, and citation omitted).

Whether the Evidence Supports the WCJ’s Finding That Worker’s Right Hip
Injury Was a “Temporary Exacerbation” of a Preexisting Injury

{10} The WCJ found that “Worker suffered a pre[Jexisting right hip injury[,]” a
finding that Worker challenges as unsupported by the evidence. As the record
reflects, Worker testified at trial that she suffered a labral tear of her right hip in 2005

that was repaired through arthroscopy surgery. Worker’s previous right hip surgery
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is documented throughout the record, including in the treatment notes of Dr. Lyman.
In challenging the evidence supporting the finding of a preexisting right hip injury,
Worker points to what she describes as “the uncontradicted evidence [showing] that
[she] had no pain, problems, or limitations relative to her right hip in the days,
months, and years prior to the April 17, 2015 work-related accident.” It is true that
Worker testified that following the 2005 surgery, she experienced no problems “with
right hip pain at all” and that she was never placed on work restrictions as a result of
her prior hip injury. But simply because Worker was not experiencing problems
with, or pain in, her right hip and was under no work restrictions following her
successful surgery in 2005 does not render the WC)J’s finding of a preexisting right
hip injury unsubstantiated. The WCJ’s finding that Worker had a preexisting injury
to her right hip is supported by substantial evidence. That finding, however,
addresses but a threshold issue related to the WCJ’s separate finding that Worker
suffered only a temporary exacerbation of that preexisting injury. Whether that
finding is supported by the record is a separate matter entirely, to which we next
turn.

{11} While Dr. Knaus, who had treated Worker in 2012 for back-related problems,
described the injury to Worker’s back as an “exacerbation” of a preexisting
condition, none of Worker’s health care providers stated or were asked whether

Worker’s post-accident right hip complaints arose from a “temporary exacerbation”

of a preexisting condition. Rather, each diagnosed her with various new injuries: Dr.
Lyman, a “contusion of the right hip . . . indicative of a trauma”; and Drs. Knaus and
Kiburz, a right hip labral tear. Indeed, Dr. Knaus specifically noted that his prior
treatment of Worker involved only her back, and he described Worker’s “right[-]side
hip and groin complaints” in 2015 as “new[.]” And while Dr. Kiburz additionally
diagnosed Worker with right hip osteoarthritis—a condition that he opined, via his
form letter, was not caused by the April 2015 work accident, i.e., was preexisting—
that diagnosis indicates little, if anything, about whether Worker’s work-related
injuries were limited solely to an exacerbation of a preexisting right hip condition.

{123 While undoubtedly possible that some of Worker’s post-accident right hip
pain could be described as indicating an exacerbation of Worker’s prior right hip
injury, the WCJ’s order provides no explanation of the evidence that supports its
finding that Worker suffered only a “temporary exacerbation” injury. See Sanchez v.
Zanio’s Foods, Inc., 2005-NMCA-134, 970, 138 N.M. 555, 123 P.3d 788
(explaining that “WCJ clarity and expressed reasoning is essential to our effective
and meaningful review”). Moreover, on appeal, Employer points to no jurisprudence
that would permit such a conclusion to be reached based solely upon the known
existence of a prior injury or an existing arthritic condition. On the whole record, we
conclude that the WCJ’s finding that Worker suffered only a “temporary

exacerbation” of her right hip injury is unreasonable as it is supported nowhere in

the record. However, even assuming, arguendo, that Worker suffered only an
exacerbation injury, the WCJ’s order must nevertheless be reversed because there is
no evidence that Worker has reached MMI for that injury, as we next explain.

Whether the Evidence Supports a Finding That Worker Had Reached MMI
for Her Right Hip

{13}. As defined in the Workers’ Compensation Act, MMI “means 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). The determination of
MM1 is important because “[e]ligibility for the various temporary benefits provided
under the [Workers’ Compensation] Act ends at the date of MMI.” Madrid v. St.
Joseph Hosp., 1996-NMSC-064, 4 7, 122 N.M. 524, 928 P.2d 250. TTD benefits, at
issue in this case, are available to a worker only from the time the inability to work
arises until the worker is declared to have reached MMI. See NMSA 1978, § 52-1-
25.1(A) (2017). “Key to determining MMI is expert medical testimony regarding
whether the injured worker is more likely than not to recover further.” Smith v.
Cutler Repaving, 1999-NMCA-030, 4 10, 126 N.M. 725, 974 P.2d 1182 (internal
quotation marks and citation omitted). There must be some evidence that the worker
“has reached a plateau of medical stability for the foreseeable future.” Rael v. Wal-
Mart Stores, Inc., 1994-NMCA-017, 4 14, 117 N.M. 237, 871 P.2d 1. Where an

expert’s uncontradicted testimony, read as a whole, suggests a probability of future
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improvement rather than the achievement of a static, stable state, a finding that MMI
has been reached is unsupported. Cf Smith, 1999-NMCA-030, ff 15-16 (explaining,
in a case involving a secondary mental impairment, that where an expert’s report
and testimony, “[rJead as a whole, . . . indicate a probability of future psychological
improvement, not a static and stabilized emotional state[,]” and where other doctors
opined that the worker was “benefitting from outpatient therapy” and “needs
considerable psychotherapeutic work[,]” the workers’ compensation judge’s finding
that the worker had reached MMI was “not supported by substantial evidence”
(alteration, internal quotation marks, and citation omitted)).

14, Here, the evidence bearing on MMI was in the form of (1) Dr. Lyman’s
deposition testimony, (2) Dr. Knaus’s deposition testimony, and (3) Dr. Kiburz’s
form letter. We consider each source separately to determine whether any supplied
the necessary evidence to support the WCJ’s finding that Worker had reached MMI
“for all conditions no later than January 29, 2016.”

(15; Dr. Lyman testified that as of June 30, 2015, the last date on which he treated
Worker, he had not placed Worker at MMI for any of the injuries—hip- or back-
related, or whether characterized as “exacerbation” or separate, new injuries—for
which he treated Worker following the work accident. In response to questioning by
Employer, he specifically explained, “[MMI] means that you have reached as good

as you’re going to get as a result of the injury.” Dr. Lyman’s testimony and medical

records evince that Worker’s condition not only did not stabilize or plateau but in
fact steadily worsened during the time he treated her. One indicator of Worker’s
worsening condition was that Dr. Lyman, who initially released Worker to return to
work with certain modifications and restrictions, continued to increase those
restrictions due to Worker’s “continued level of disability and discomfort” and
eventually took Worker off of work completely due to her complaints of worsening
pain. As of June 2015, Dr. Lyman “felt that [Worker] needed more treatment[,]”
specifically physical therapy and physiatry. He explained that he does not “place
someone at [MMI] until everything has been tried” and, noting that his records
lacked “evidence that everything has been tried[,]” stated, “It was my opinion that
she had not reached [MMI].” Dr. Lyman’s testimony thus fails to supply evidence
in support of the WCJ’s finding regarding MMI.

416; Dr. Knaus, for his part, first saw Worker in July 2015. At that time he
recommended that she “undergo[] further diagnostic evaluation of the right hip” and
referred her to Dr. Kiburz, a hip specialist, believing that Worker’s hip pain could
be “help[ed].” In August 2015 Dr. Knaus performed an inter-articular injection on
Worker’s right hip, believing that Worker would “see further recovery from or
lasting improvement to her right hip complaints if she underwent th[e] injection.”
When Worker did not receive lasting improvement benefit from the injection, Dr.

Knaus referred Worker back to Dr. Kiburz for additional consultation. In December

2015, when Worker reported to Dr. Knaus that her follow-up appointment with Dr.
Kiburz had been “canceled by her adjuster,” Dr. Knaus and Worker discussed the
possibility of “obtaining a second opinion from an orthopedic hip doctor” or
“undergoing an [IME].” Dr. Knaus, indeed, referred Worker to a different orthopedic
specialist. When Dr. Knaus saw Worker on January 29, 2016, he recommended
“starting an aquatic therapy program to work on ongoing strengthening and
mobility.” He did so because he “was hopeful that it would be beneficial for
[Worker].” Dr. Knaus expressly stated that as of January 29, 2016, the last date on
which he treated Worker, he had not placed Worker’s right hip at MMI. So too, Dr.
Knaus’s testimony fails to supply evidence to support the WCJ’s finding on the issue
of MMI.

417}. With respect to Dr. Kiburz, he treated Worker only once, on August 19, 2015.
In his treatment notes, Dr. Kiburz explained that Worker “presents for evaluation of
right hip pain after a work[-]related injury. Her injury occurred on or about
4/17/2015.” Under “Impressions,” Dr. Kiburz indicated that Worker was suffering
from two conditions: (1) “right Labral Tear Hip” and (2) “right Osteoarthritis
Localized Primary Hip/Thigh.” Dr. Kiburz recommended an_ intra-articular
injection, which was performed by Dr. Knaus, and that Worker follow up with him
in one month. Three months later and without seeing Worker again, Dr. Kiburz filled

out a form letter to health care provider. In response to the form’s preprinted

question, “What is your diagnosis of the condition(s) for which you have treated the
Worker?” Dr. Kiburz wrote “R Hip OA,” indicating right hip osteoarthritis. As to
that condition, Dr. Kiburz indicated that Worker had reached MMI as of August 19,
2015, the date on which he saw Worker. Nowhere in the statements made by Dr.
Kiburz in the form letter does he so much as mention Worker’s right hip labral tear.
Thus, Dr. Kiburz’s opinion at most supports a finding that Worker’s right hip
osteoarthritis had reached MMI, and nothing more.

{18} Against the backdrop of this uncontradicted medical evidence, the WCJ’s
finding that Worker had reached MMI “for all conditions” no later than January 29,
2016, is unsupportable on this record. Notably absent from the WCJ’s order is any
discussion of the testimony and opinions of either Dr. Lyman or Dr. Knaus, with the
order instead focusing solely, and unreasonably, on the opinion contained in Dr.
Kiburz’s form letter to support its determination. But in the context of determining
whether Worker had reached MMI for the discrete injuries she suffered as a result
of the work accident, Dr. Kiburz’s form letter responses provide little, if any,
probative worth, particularly in light of the evidence supplied by the whole record.
See Trujillo, 2016-NMCA-041, 7 15 (“After reviewing all the evidence, both
favorable and unfavorable, we disregard that which has little or no worth and then
decide if there is substantial evidence in the whole record to support the agency’s

finding or decision.” (internal quotation marks and citation omitted)). In all, we

conclude that the WCJ’s ruling is not supported by substantial evidence and must,
therefore, be reversed.

Remand is Necessary

419} This Court has not hesitated to remand a case when the WCJ’s order fails to
clearly and meaningfully address the ultimate issues presented. See Zanio’s Foods,
Inc., 2005-NMCA-134, 9 70 (‘WCJ clarity and expressed reasoning is essential to
our effective and meaningful review.”); St. Clair, 1990-NMCA-087, { 40 (“Where
the findings of fact are insufficient to permit meaningful appellate review, the cause
may be remanded in the interests of justice for the adoption of additional findings.”).
We do so in this case because on the record and briefing before us, we cannot say
that the WCJ’s findings and conclusions with respect to the compensability of
Worker’s right hip injury are reasonable. On remand, the WCJ must render a
determination regarding the compensability of Worker’s right hip injury that is
supported by substantial evidence, including express findings relating to the date of
MMI of Worker’s right hip injury and the degree of disability caused by that injury.

The WCJ may order additional discovery or an IME or may follow such other

*Because of the deficient nature of the original briefs filed in this appeal, this
Court ordered each of the parties to submit a supplemental brief addressing specific
issues the Court identified as needing clarification. Worker’s supplemental brief
sufficiently clarifies her appellate argument to at least facilitate our ability to
meaningfully review the compensation order herein. Employer’s briefs have failed
to provide this Court with either convincing counterarguments to the issues Worker
raises or any reasoned analysis supporting affirmance of the decision below.

procedures as may be necessary to reach a reasonable compensation determination,
one supported by substantial evidence.

{20} Our cases have previously cautioned parties and workers’ compensation
judges about the need to “take exceptional care to adequately cover the questions
raised” in cases involving multiple injuries and where preexisting injuries may be at
issue. Molinar, 2018-NMCA-011, 949 (internal quotation marks and citation
omitted); see Zanio’s Foods, Inc., 2005-NMCA-134, {§ 54, 57. This case serves as
yet another example of how the failure to do so can unnecessarily prolong an
otherwise uncomplicated proceeding and delay the final disposition of cases that are

intended to be resolved swiftly and efficiently.’

3We reject Employer’s attempt to shift to this Court any responsibility for the
delay in resolving this appeal. Employer’s speculative statement that “[e]lections,
re-appointments[,] and staff turnover are likely the root cause of delay” not only has
no place in an appellate brief but also ignores the primary source of delay:
Employer’s own preoccupation with baseless allegations and specious issues, and its
concomitant failure to both develop a sufficient record below and present and argue
only relevant facts and dispositive issues on appeal. We caution Employer and its
counsel regarding the use of such disparaging assertions in future briefing to this
Court.

Contrary to Employer’s apparent belief, this Court has invested an inordinate
amount of time and resources attempting to decipher and unravel both the parties’
briefs and the WCJ’s order. As noted above, this Court ordered supplemental
briefing in order to provide both parties the opportunity to meaningfully aid the
Court’s review because of the obvious shortcomings of their initial briefs. Instead of
making the most of the opportunity to clarify its argument, defend the WCJ’s order,
and offer this Court a possible path to affirmance, Employer does little more in its
supplemental brief than recite myriad ancillary facts without providing any
explanation or analysis of how these facts apply to workers’ compensation law or
inform our analysis of the issues presented herein. We are under no obligation to

x “\ NO 00

CONCLUSION

(21; For the foregoing reasons, we reverse the WCJ’s compensation order and
remand for the WCJ to make a reasonable and supportable determination regarding
the compensability of Worker’s right hip injury.

22} ITISSO ORDERED.

J. MILES HANISEE, Judge
WE CONCUR:
JULAE J. 4 ARGAS
| BRIANA WL WL

consider, more than we already have, Employer’s unclear, undeveloped,
unsupported contentions. See Elane Photography, LLC v. Willock, 2013-NMSC-
040, § 70, 309 P.3d 53 (“We will not review unclear arguments, or guess at what a
party’s arguments might be.” (alteration, internal quotation marks, and citation
omitted); Corona v. Corona, 2014-NMCA-071, J 28, 329 P.3d 701 (“This Court has
no duty to review an argument that is not adequately developed.”); 777 Educ. Servs.,
Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¥ 10, 125 N.M. 244, 959 P.2d
969 (explaining that this Court will not consider propositions that are unsupported
by citation to authority).

March 28, 2019- Kathy Blakely v. Lovelace Hospital, No. A-1-CA-35889

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