August 27, 2019- Eugene W. Trujillo v. Luna Community College, No. A-1-CA-36356

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	EUGENE W. TRUJILLO,
3 	Worker-Appellant,
4 v. 	No. A-1-CA-36356
5 LUNA COMMUNITY COLLEGE and
6 NEW MEXICO PUBLIC SCHOOL
7 INSURANCE AUTHORITY,
8 	Employer/Insurer-Appellees.
9 APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION
10 Terry S. Kramer, Workers' Compensation Judge
11 	Gerald A. Hanrahan
12 Albuquerque, NM
13 	for Appellant
14 Hoffman Kelley Lopez LLP
15 	Jeffrey L. Federspiel
16 Albuquerque, NM
17 for Appellees
18 	MEMORANDUM OPINION
19 ATTREP, Judge.
20 	{l} 	Worker 	Eugene 	Trujillo 	appeals 	from 	a 	workers' 	compensation 	order,
21 	adopting certain impairment ratings and setting partial permanent disability benefits.
22 Determining the Workers' 	Compensation Judge's (WCJ) findings 	of fact and
23 	conclusions of law inadequate for effective appellate review, we reverse and remand
Court of Appeals of New Mexico
Filed 8/27/2019 11:36 AM

1 to the Workers' Compensation Administration for entry of amended or additional
2 findings and conclusions and for entry of an amended compensation order.
3 BACKGROUND
4 	{2} 	Worker suffered an on-the-job injury to his cervical spine in October 2011
5 while employed by Luna Community College (Employer). Employer is insured by
6 New Mexico Public School Insurance Authority (Insurer). In July 2014, Worker's
7 treating physician, Dr. Miguel Pupiales, evaluated Worker for purposes of assigning
8 an impairment rating and, based on Worker's current pathology, concluded that
9 Worker's cervical spine injury warranted an impairment rating of 12 percent. In
10 	October 2016 Dr. Pupiales re-evaluated Worker's cervical spine injury due to a
11 	worsening of Worker's condition and concluded that Worker's cervical spine injury
12 warranted an impairment rating of29 percent. On the day of trial, Employer/Insurer
13 	made a request for an independent medical examination (IME). The WCJ granted
14 the request and thereby continued the trial. Dr. Juliana Garcia was appointed to
15 	conduct the IME, which was completed in January 2017. Dr. Garcia assigned
16 Worker's cervical spine injury an impairment rating of 7 percent. After trial, the
17 WCJ entered a compensation order, stating, without explanation, "[t]his court
18 	accepts the 7 [percent] permanent physical impairment for cervical injury as
19 assessed by [Dr. Garcia]." The WCJ, using the "combined values method" from the
20 American 	Medical 	Association's 	Guides 	to 	the 	Evaluation 	of 	Permanent
2

1 Impairment, Sixth Edition (AMA Guides), further found that "Worker has a 30
2 	[percent] whole person impairment," including a 5 percent impairment rating for
3 Worker's dysphagia, 7 percent for Worker's cervical spine, and 20 percent for
4 Worker's psychological injuries.
5 DISCUSSION
6 	{3} 	Worker argues: (1) the WCJ's finding of7 percent impairment for the cervical
7 spine injury is not supported by substantial evidence, (2) the WCJ erred in utilizing
8 the "combined values method," as prescribed by the AMA Guides, to determine
9 Worker's overall impairment rating, and (3). the WCJ abused his discretion in
10 	granting Employer/Insurer's request for an IME on the day of trial.
11 	I.
12 	{4}
Appellate Jurisdiction
Before we 	examine Worker's 	arguments, 	we address 	whether we have
13 jurisdiction over Worker's appeal. Employer/Insurer argues that this Court lacks
14 jurisdiction to hear this appeal because there is a pending claim of bad faith still
15 	before the WCJ, making the compensation order non-final for purposes of appellate
16 review. In response, Worker asserts that all claims of bad faith were resolved by the
17 compensation order, and to the extent that any survived, Worker has abandoned them
18 	in order to proceed with this appeal. Given that Worker has affirmatively abandoned
19 all potentially outstanding claims, the compensation order is a final, appealable
20 order. See Zuni Indian Tribe v. McKinley Cty. Bd. ofCty. Comm'rs, 2013-NMCA-
3

1 041, 116, 300 P.3d 133 (stating that an order or judgment is considered final when
2 all issues oflaw and fact have been determined and the case disposed of by the lower
3 court to the fullest extent possible). Accordingly, this Court has jurisdiction to hear
4 Worker's appeal.
5 II. 	Impairment Rating for Worker's Cervical Spine
6 	{5} 	Worker's primary argument is that the WCJ erred in .selecting the 7 percent
7 impairment rating offered by Dr. Garcia because it was not supported by substantial
8 evidence. Worker points to numerous perceived inconsistencies and admissions in
9 Dr. Garcia's deposition testimony, which he alleges support a finding of impairment
10 greater than 7 percent when properly evaluated against the criteria outlined in the
11 	AMA Guides. Employer/Insurer counters by arguing that the WCJ had "discretion
12 to pick the impairment and [was not] stuck picking the impairment that is highest"
13 	and also by citing portions of Dr. Garcia's deposition testimony purporting to
14 support her finding of a 7 percent impairment rating.
15 	{6} 	We, however, are unable to 	conduct an effective review 	of the 	WCJ's
16 compensation order because the WCJ's findings of fact and conclusions of law are
17 insufficient. 	The 	WCJ's 	compensation order in this case fails to provide any
18 	explanation regarding his selection of the 7 percent impairment rating. In his order
19 the WCJ found:
20
21
8. 	Worker has a permanent impairment as a result of the cervical
lllJUry.
4

1
2
3
4
5
9. 	There 	is 	evidence 	in 	the 	record 	to 	support 	a 	numerical
impairment for the cervical injury of 7 [percent,] 12 [percent] or
29 [percent].
10. 	This 	court 	accepts 	the 	7 	[percent] 	permanent 	physical
impairment for the cervical injury as assessed by [Dr. Garcia].
6 "The problem, as we see it, lies in how we are to meaningfully review the WCJ's
7 determinations where we do not have the benefit of a fully developed case with
8 reasoning and explanatory findings necessary to decide whether error occurred."
9 Sanchez v. Zanio 's Foods, Inc., 2005-NMCA-134, , 	53, 138 N.M. 555, 123 P.3d
10 	788. We are unable to engage in any meaningful review of the WCJ's selection of
11 	an impairment rating because there is no explanation, citation to the record, or
12 citation to authority informing this Court of the basis for the WCJ's decision. See id.
13 	, 	70 (explaining that "clarity and expressed reasoning is essential to our effective
14 and meaningful review" in our review of the compensation order).
15 	{7} 	Were we able to review Worker's claims of error on the record before us, we
16 would apply a whole record standard of review to determine if the WCJ's findings
17 are supported by substantial evidence. See id. , 	9. Based on our limited review of
18 the evidence, and without the benefit of adequate findings and conclusions, it is not
19 clear that 	substantial 	evidence 	supports 	the 	WCJ' s 	selection 	of a 	7 	percent
20 impairment rating. Dr. Garcia's testimony seems to offer limited support for her
21 	ultimate conclusion that Worker's cervical spine warrants only a 7 percent rating,
5

1 especially when contrasted with the evidence offered by Dr. fupiales to support a
2 29 	percent 	impairment 	rating. 	A 	ruling 	on 	this 	issue, 	however, 	would 	be
3 impracticable given the lack of factual findings and analysis in the WCJ's order, and
4 we decline to undertake this fact finding on Ol:lr own. See Toynbee v. Mimbres Mem 'l
5 Nursing Home, 1992-NMCA-057, 116, 114 N.M. 23, 833 P.2d 1204 ("[W]here the
6 findings are insufficient to permit the reviewing court to properly decide the issues
7 raised on appeal, justice may require that the cause be remanded for adoption of
8 additional findings and conclusions so as to clarify a determinative issue."); Scott v.
9 Jordan, 1983-NMCA-022, 122, 99 N.M. 567, 661 P.2d 59 ("[A]n appellate court
10 cannot make [factual] findings of its own[.]"). For this reason, we reverse and
11 	remand for the WCJ to provide detailed, reasoned analysis, explanation, and/or
12 authorities supporting his selection of an impairment rating (whether it be 7, 12, or
13 	29 percent) for Worker's cervical spine injury, to be contained in amended or
14 additional findings of fact and conclusions of law that are amenable to effective
15 	appellate review. See Case v. Hanna Plumbing & Heating Co., Inc., No. 34,934;
16 mem. op. 1 38 (N.M. Ct. App. Jul. 18, 2017) (non-precedential) (reversing and
17 remanding where "we [we]re not adequately made aware of the WCJ's underlying
18 bases for his determinations").
6

1 III. 	Combined Values Method
2 {8} 	When a worker suffers multiple impairments related to a work-place incident,
3 the AMA Guides provide a chart that combines separate impairment ratings to
4 calculate 	an overall 	impairment rating· (the "combined values 	method"). 	The
5 combined values method is different than simply adding up the impairment ratings.
6 Worker argues the WCJ erred by utilizing the combined values method, instead of
7 simply adding all the impairment values together, because "[t]he combined values
8 method utilized by the [AMA] Guides never results in a greater than additive value
9 [and] almost always results in a less than additive value," thus reducing Worker's
10 total compensation. (Internal quotation marks omitted.) Employer/Insurer responds
11 	by arguing that the AMA Guides, including the combined values method, were
12 	specifically adopted by the Legislature and serve to ensure that duplication and/or·
13 	inflation of the rating is avoided. See, 	e.g., NMSA 1978, § 52-1-24(A) (1990)
14 (mandating that a finding of"impairment" be based upon the AMA Guides). While
15 	this issue was presented to the WCJ via Worker's proposed findings of fact and
16 conclusions of law, the WCJ again failed to provide any analysis or rationale for
17 applying the combined values method, merely stating in his findings:
18
19
20
16. 	Using the [c]ombined [v]alues chart[,] Worker has a 30 [percent]
whole person impairment resulting from the October 7, 2011 [,]
work accident.
7

1 For effective review, we again reverse and remand for the WCJ to specifically
2 explain its determination that the "combined values method" is the appropriate
3 method to calculate Worker's overall impairment rating. See Case, No. 34,934,
4 mem. op., 77 (declining to reach the worker's argument regarding the application
5 of the combined values method to calculate whole person impairment where the
6 findings 	of fact and conclusions of law in the workers' compensation judge's
7 compensation order were inadequate for appellate review).
8 IV. 	The WCJ's Grant of an IME on the Day of Trial
9 	{9} 	Finally, Worker asserts that the WCJ abused his discretion when it granted
10 Employer/Insurer's request for an IME on the day of trial. Worker fails, however, to
11 	cite any authority for the proposition that a workers' compensation judge is divested
12 	of authority or discretion to grant an IME on the day of trial, and Worker otherwise
13 	fails to develop this argument in his brief in chief. Accordingly, we assume no such
14 authority exists and decline to consider the contention further. See Curry v. Great
15 Nw. 	Ins. 	Co., 2014-NMCA-031, , 	28, 320 P.3d 482 ("Where a party cites no
16 authority to support an argument, we may assume no such authority exists."); see
' 	'
17 also Corona v. Corona, 2014-NMCA-071,, 28, 329 P.3d 701 ("This Court has no
18 	duty to review an argument that is not adequately developed.").
8

1 CONCLUSION
2 	{10} 	For the foregoing reasons, we reverse the compensat~on order and remand for
3 the WCJ to enter: (1) amended or additional findings of fact and conclusions of law
4 based on the existing record, specifically providing detailed, reasoned analyses,
5 explanations, and/or authorities supporting (a) the selection of an impairment rating
6 for Worker's cervical spine injury, and (b) the choice to utilize the "combined values
7 method" 	to 	calculate 	Worker's 	overall 	impairment; 	and 	(2) 	an 	amended
8 compensation order consistent therewith.
9 	{11} 	IT IS SO ORDERED.
10 	~tc/2£11 	JEN 	~ATTREP,Judge
12 WE CONCUR:
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13 	JI,. w;JJ)tV'
14 J. MILES HANISEE, Judge
15 	f#:t--~16 KRITiNABoGUS:Ju
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