April 17, 2019- Scott Kaufman v. University of New Mexico Hospital, No. A-1-CA-36456

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

1]
12
13
14
15
16
17
18
19
20
21
22

23

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

SCOTT KAUFMAN, Filed 4/17/2019 11:18 AM
hE
Worker-Appellee,
Mark Reynolds
Vv. No. A-1-CA-36456
UNIVERSITY OF NEW MEXICO

HOSPITAL and STATE OF NEW
MEXICO RISK MANAGEMENT,

Employer/Insurer-Appellants.

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

Pizzonia Law
Justin P. Pizzonia
Rose Bryan
Albuquerque, NM
for Appellee
Garcia Law Group, LLC
Jacob R. Candelaria
Albuquerque, NM
for Appellants
MEMORANDUM OPINION
B. ZAMORA, Judge
{3} The University of New Mexico Hospital (Employer) appeals the

determination of the workers’ compensation judge (WCJ) that Scott Kaufman’s

1 (Worker) allergic reaction to a co-worker's perfume-like scent arose out of and in
2 the course and scope of his employment. We affirm.
3 BACKGROUND
4 	{2} 	The evidence admitted at trial, together with the WCJ findings of fact and
5 conclusions of law, established the following. 	On January 5, 2015, Worker, a
6 respiratory therapist for UNMH, was exposed to a perfume-like scent emanating
7 from a co-worker. Although Employer has an internal policy prohibiting the use of
8 strong scents at the workplace, the scent from the coworker was so pervasive it
9 permeated the work space. As a result of the exposure, Worker began experiencing
10 shortness of breath, burning lips and tightness in his throat. Worker's symptoms did
11 	not subside and he was transported to the emergency room on a stretcher where he
12 was treated for an asthma attack, upper respiratory infection, and allergies. The
13 	emergency room health care providers diagnosed Worker with an allergic reaction
14 caused by exposure to the strong scent in the workplace and discharged Worker once
15 	he was asymptomatic.
16 	{3} 	Employer's policy, of which Worker was aware, is that Employer makes the
17 initial selection of healthcare provider (HCP), and injured employees are required to
18 	obtain treatment through Occupational Health Services (OHS) at UNMH. Worker
19 called OHS on January 7, 2015, and was scheduled to be seen on January 9th, the
20 first available appointment. He then obtained an appointment and received treatment
2

1 at Lobo Care, a UNM clinic for UNMH employees, on January 8, 2015. Dana Haupt,
2 a certified nurse practitioner with OHS, treated Worker on January 9, 2015, and
3 referred Worker to Lobo Care for continuing treatment if he did not feel better by
4 January 12, 2015. Haupt diagnosed Worker with a "likely allergic reaction to
5 perfume, not work related [and] resolving." Worker returned to Lobo Care on
6 January 	12, 2015, 	and was treated by Dr. 	Melissa Martinez for his 	ongoing
7 symptoms and was instructed not to return to work until January 19, 2015.
8 	{4} 	Dr. Martinez referred Worker for treatment with Dr. Nathan Boyd and,
9 approximately one month after the exposure, Dr. Boyd began treating Worker for
10 the throat irritation resulting from his work-related allergic reaction. 	Dr. Boyd
"
11 	diagnosed Worker with plica ventricularis, neck pain, and allergic reaction and
12 opined to 	a 	reasonable 	degree 	of medical 	probability that Worker's 	medical
13 	conditions were causally related to his work-related exposure.
14 	{5} 	Over a year later, Worker again treated with Dr. Martinez for a chronic sore
15 throat and difficulty speaking. Dr. Martinez determined that the "throat pain and
16 voice dysfunction ... seem to get worse when he is at work and talking all the time
17 and gets better when he is at home."
18 	{6} 	Prior to trial, Employer objected to all medical records and/or testimony from
19 Drs. Boyd and Martinez, arguing that these physicians were not authorized HCPs
20 under the Workers' Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as
3

1 amended to 2017) (the Act). In the compensation order issued after trial, the WCJ
2 concluded that Employer made the initial selection of HCP, choosing OHS and that
3 "Worker's authorized HCP as of January 5, 2015" was OHS and, as of January 12,
4 2015, his authorized HCPs included Drs. Martinez and Boyd. The WCJ based this
5 conclusion on a finding that Haupt referred Worker to Dr. Martinez (Lobo Care) for
6 continuing treatment if Worker did not feel better by January 12, 2015. The WCJ
7 also concluded that Worker's allergic reaction to the perfume-like scent arose out of
8 and occurred within the course and scope of his employment. The WCJ found that
9 	"Worker's injuries [were] causally related to his employment" and awarded Worker
10 reasonable and necessary medical care for his work-related injuries. Employer
11 	appeals.
12 {7} 	Because this is a memorandum opinion and the parties are familiar with the
13 	facts, we reserve discussion of additional facts where pertinent to our analysis.
14 DISCUSSION
15 	{8} 	Employer makes two arguments that we consider in reverse order. First, that
16 . OHS' s "recommendation" that Worker seek follow-up care with Lobo Care is not a
17 "referral making the Worker's primary care physician a healthcare provider capable
18 	of providing 	admissible testimony;" 	Employer next 	contends that the 	WCJ's
19 conclusion that Worker's injuries were causally related to his employment is not
20 supported by substantial evidence.
4

1 I. 	Testimony of Dr. Martinez and Dr. Boyd Was Admissible
2 	{9} 	The WCJ concluded that Drs. Martinez and Boyd were authorized HCPs
3 based on his finding that Haupt referred Worker "to Lobo Care [Dr. Martinez] for
4 continuing treatment[.]" "[W]e review the whole record to determine whether the
5 WCJ's findings ... are supported by substantial evidence." Grine v. Peabody Nat.
6 Res., 2006-NMSC-031, ,-r 17, 140 N.M. 30, 139 P.3d 190. "With regard to issues of
7 law, this Court determines whether the WCJ correctly applied the law to the facts,
8 viewing the facts in the light most favorable to the determination below." Buchanan
9 v. Kerr-McGee Corp., 1995-NMCA-131 il 5, 121 N.M. 12,908 P.2d 242.
10 	{to} 	At trial, Worker sought to introduce the medical records and testimony ofDrs.
11 	Martinez and Boyd to establish that his work-related exposure caused the allergic
12 reaction and associated symptomology. See NMSA 1978, § 52-1-28(B) (1987)
13 	(stating the worker has the burden of proving a causal connection between a work-
14 related accident and his or her injuries through the testimony of an authorized health
15 	care provider). The WCJ allowed the testimony and records of both doctors on the
16 basis that Haupt had referred Worker to Dr. Martinez (Lobo Care) and, therefore,
17 Dr. Martinez and any of her referrals were authorized HCPs under the Act.
18 	{11} 	An 	authorized 	health 	care 	provider 	is 	"any 	person, 	entity, 	or 	facility
19 authorized to furnish health care to an injured or disabled worker." 1 l.4.7.7(M)
20 NMAC. "Only a health care provider who has treated the worker ... may offer
5

1. testimony at 	[a] 	workers' 	compensation hearing." NMSA 1978, § 52-1-51(C)
2 (2013). A medical report from a physician constitutes "testimony" under the Act.
3 See Jurado v. Levi Strauss & Co., 1995-NMCA-129, ,, 24-25, 120 N.M. 801, 907
4 P .2d 205 (holding the written medical report of an unauthorized HCP is inadmissible
5 testimony within the meaning of the Act). Both parties agree that Employer made
6 the initial selection of HCP by choosing OHS and they do not dispute that Worker
7 knew that he was to receive treatment at OHS. See NMSA 1978, § 52-1-49(B) (1990)
8 (stating that an employer may choose a worker's initial health care provider or may
9 allow the worker to choose).
10 	{12} 	A "referral" is "the sending of a patient by the authorized HCP to another
11 	practitioner for evaluation or treatment of the patient and it is a continuation of the
12 care provided by the authorized HCP." 11.4.7.7(X) NMAC. See 	11.4.4.12(C)(l)
13 	NMAC. ("A referral by an authorized HCP to another HCP shall be deemed a
14 continuation of the selection of the referring H~P ."). The Rules do not provide an
15 	exception when the referring HCP disagrees with the referred HCP's opinion.
16 	{13} 	Haupt concluded that Worker's injury was not work-related and instructed
17 Worker to treat at Lobo Care or his primary care physician should he need additional
18 treatment. 	Employer 	agreed 	with 	Haupt's 	determination 	as 	to 	causality, 	but
19 nevertheless 	advised 	Worker 	his 	claim 	was 	compensable 	as 	a 	"temporary
20 exacerbation of a pre-existing condition" and his treatment from Haupt and her
6

1 referrals would thus be compensable. However, Employer required that "[a]ny
2 additional treatment would require a referral or direct treatment from [OHS] in order
3 to be covered under the ... Act." In subsequently notifying Worker that it was
4 denying his claim, Employer specifically stated "[o]ur provider [OHS] referred you
5 to your primary care provider for further follow up if necessary; however you self-
6 referred to specialists. The treatment you received from [OHS] was reviewed and
7 was found to be appropriate." (Emphasis added.) In our view, Worker merely
8 followed the directions of Haupt and Employer, both of whom directed him to treat
9 at OHS and its referrals. We conclude that under the facts of this case, substantial
10 evidence supports the WCJ's determination that when Haupt told Worker to go to
11 	back to Lobo Care if he did not feel better, she was referring him for additional
12 treatment as a continuation of the care provided by OHS, an authorized HCP.
13 	{14} 	As a result, when Haupt referred Worker to Lobo Care, Dr. Martinez became
14 an authorized HCP, as did her referrals and hence, the testimony of Drs. Martinez
15 	and Boyd establishing causation of the work-related injury was admissible under the
16 Act.
17 II. 	Substantial Evidence Supports the WCJ's Conclusion That Worker's
18 	Injury Arose Out of His Employment
19 {15} 	Employer contends that substantial evidence is lacking to support the WCJ's
20 findings that Worker's allergic reaction to a perfume-like scent arose out of his
21 	employment, was a risk incident to his employment and was causally related to
7

1 Worker's employment. Employer also argues that Worker's employment "did not
2 increase, or contribute to, Worker's risk of smelling perfume or essential oils"
3 particularly relative to the general community. We disagree.
4 {16} 	We 	review 	Employer's 	arguments 	under 	a 	whole 	record 	standard 	of
5 review. See Moya v. City of Albuquerque, 2008-NMSC-004 ,r 6,143 N.M. 258, 175
6 P.3d 926. Generally, "we will not substitute our judgment for that of the agency;
7 although the evidence may support inconsistent findings, we will not disturb the
8 agency's 	finding 	if 	supported 	by 	substantial 	evidence 	on 	the 	record 	as 	a
9 whole." Rodriguez v. Permian Drilling Corp., 2011-NMSC-032 ,r 7, 150 N.M. 164,
10 258 P.3d 443 (alterations, internal quotation marks, and citation omitted). "Where
11 	the historical facts are undisputed, whether the accident arose out of and in the course
12 of the employment is a question of law." Hernandez v. ·Home Educ. Livelihood
13 	Program, Inc., 1982-NMCA-079, if 9, 98 N.M. 125,645 P.2d 1381.
14 {17} 	Worker's claim is compensable under the Act if, at the time of the accident,
15 	he was performing work arising out of and in the course of his employment and "the
16 injury ... is proximately caused by [an] accident arising out of and in the course of
17 his 	employment[.]" NMSA 	1978, 	§ 52-1-9(B), (C) 	(1973). 	"[A]rising out 	of
18 	employment" denotes "a risk reasonably incident to [the] claimant's work." Flores
19 v. McKay Oil Corp., 2008-NMCA-123, if 10, 144 N.M. 782, 192 P.3d 777 (internal
20 quotation marks and citations omitted). An injury arises out of employment if a
8

1 worker was completing tasks the employer instructed him or her to complete or tasks
2 incidental to his or her assigned duties. Chavez v. ABF Freight Sys., 2001-NMCA-
3 039, 110, 130 N.M. 524, 27 P.3d 1011; see Flores, 2008-NMCA-123, 1 10 ("The
4 employment [must] be a contributing proximate cause of the injury. The causative
5 danger must be peculiar to the work itself and not independent of the employment
6 relationship."). In deciding whether a risk is peculiar or incident to a worker's
7 employment, we have looked at whether the general public would be exposed to a
8 similar risk. See Castillo v. Caprock Pipe & Supply, Inc., 2012-NMCA-085, 1 13,
9 285 P.3d 1072.
10 	{18} 	Here, Worker was working as a respiratory therapist at the time of the
11 	underlying incident. While discharging his work-related duties, he was exposed to a
12 	strong, perfume-like scent emanating from a coworker. The scent was so pervasive
13 	that one of Worker's co-employees had to use a rescue inhaler. As a result of the
14 exposure, Worker suffered an immediate reaction as his lips began to bum and his
15 	throat felt like it was closing. Worker's condition deteriorated to the point where he
16 was transported from his workplace to the emergency room on a stretcher. There is
17 no question that Worker was doing his job at his place of employment when he was
18 	injured. The determinative question, then, is whether the risk was peculiar to
19 Worker's employment or whether the general public would be exposed to a similar
20 risk.
9

1 {19} 	We have held that there is substantial evidence to support the compensability
2 	of workers' claims for work-related exposures akin to Worker's exposure in this
3 case. See Castillo, 2012-NMCA-085,, 13 (holding that the worker's employment
4 in a warehouse occupied by pigeons "had a peculiar or increased risk" of exposure
· 5 to pigeons and thus, the worker's contraction of psittacosis and ultimately his death
6 were "caused by his [work-related] exposure to pigeons and pigeon feces"); Schober
7 v. Mountain Bell Tel., 1980-NMCA-l 13,, 17, 96 N.M. 376,630 P.2d 1231 (holding
8 that the worker's severe reaction to cigarette smoke arose out of his employment
9 because of his ongoing exposure to the smoke).
10 	{20} 	Like the workers in Castillo and Schober, Worker's exposure to the strong
11 	scent in a confined space was a risk incident to his work. While it is true that
I
12 members of the public have the potential of exposure to perfume or other strong
13 	scents, the public is not tasked with treating patients in a confined space with a
14 coworker from whom a strong scent is emanating. More importantly, unlike most
15 public places, UNMH has an internal policy expressly prohibiting the use of strong
16 ·scents in its workplace. Thus, even members of the public would not generally have
17 been exposed to such a risk at the hospital. Employer argues that the coworker was
18 	not a UNMH employee, suggesting that it had no supervisory control over a non-
19 employee's actions. Irrespective of who employed the coworker, because of the
20 nature of Worker's employment and day-to-day duties, and despite the policy that
10

1 was in place to protect workers from exposure to strong· scents, Worker had no
2 choice but to work with this individual on the date of the incident. Exposure to
3 pigeon feces and cigarette smoke are common to the public and are comparable to
4 exposure to perfume-like scents. Nonetheless, like the workers in Castillo and
5 Schober, Worker's ongoing and pervasive exposure to the scent was a result of his
6 required attendance at work and thus, was a risk incident to his employment, a risk
7 which Employer was evidently well aware of and sought to address in light of its
8 internal policy prohibiting strong, perfume-like scents in the work place. We
9 recognize that under a similar set of facts, a WCJ could reach the opposite conclusion
10 and determine Worker's employment did not increase Worker's risk of smelling
11 	perfume or essential oils particularly relative to the general community. However,
12 our task is not to reweigh the evidence. See Schober, 1980-NMCA-113, 116 (stating
13 	that "it is the function of the trier of fact and not [the appellate court] to weigh the
14 evidence). Accordingly, we hold there is substantial evidence supporting the WCJ
15 	finding that Worker's allergic reaction was causally related to and arose out of and
16 in the course and scope of his employment with Employer.
17 CONCLUSION
18 	{21} 	For the foregoing reasons, we affirm.
19 	{22} 	IT IS SO ORDERED.
20
. 21

1 WE CONCUR:
2 Lundandany
3 LINDA M. VANZI, Judge
4 Jacqueline R. Medina
5 JACQUELINE R. MEDINA, Judge
12