Mendez v. McDonalds ( 2019 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 RAMONA MENDEZ,
3 Worker-Appellant/Cross-Appellee,
4 v. NO. A-1-CA-37197
5 McDONALDS and FOOD INDUSTRY
6 SELF-INSURANCE FUND,
7 Employer/Insurer-Appellees/Cross-Appellants.
8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
9 Leonard J. Padilla, Workers’ Compensation Judge
10 Peter D. White
11 Santa Fe, NM
12 for Appellant/Cross-Appellee
13 Paul L. Civerolo, L.L.C.
14 Paul L. Civerolo
15 Albuquerque, NM
16 for Appellees/Cross-Appellants
17 MEMORANDUM OPINION
18 VANZI, Judge.
1 {1} Worker appeals and Employer/Insurer cross appeals from a compensation order.
2 We previously issued two notices of proposed summary disposition in which we
3 proposed to uphold the WCJ’s determinations. Both Worker and Employer/Insurer
4 have filed a memorandum in opposition. After due consideration, we remain
5 unpersuaded by the assertions of error. We therefore affirm.
6 {2} Because the relevant background information and authorities have previously
7 been set forth, we will avoid undue reiteration here, and focus instead on the content
8 of the parties’ responsive memoranda.
9 {3} We will begin with Worker’s memorandum in opposition, in which she
10 continues to argue that the WCJ erred in the assignment of skills points. [W MIO 1-3]
11 Worker previously asserted that the evidence was insufficient to establish that she
12 successfully performed the vocation of hotel housekeeper, as defined by the U.S.
13 Department of Labor’s Dictionary of Occupational Titles, and as such, Worker has
14 argued that the WCJ’s application of six skills points was erroneous. We previously
15 accepted Worker’s assertion relative to the evidence presented below. [2nd CN 3]
16 Nevertheless, as we observed in the second notice of proposed summary disposition,
17 the evidence that Worker successfully performed the vocation of a fast food cook
18 supports the same result. [2nd CN 3-4] See generally Hawkins v. McDonald’s, 2014-
19 NMCA-048, ¶ 23, 323 P.3d 932 (“[W]e [may] affirm the award of modifier-based
20 PPD benefits under the right for any reason doctrine.”). In her memorandum in
2
1 opposition Worker contends that our reliance upon this alternative basis for
2 affirmance is improper because the WCJ did not enter specific findings on this and
3 because the evidence was conflicting. [W MIO 2-3] We are unpersuaded. Under the
4 right for any reason doctrine, we may affirm the compensation order on grounds not
5 relied upon by the WCJ if those grounds do not require us to look beyond the factual
6 allegations that were raised and considered below. Id. (citing State v. Vargas,
7 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684). See generally Flemma v.
8 Halliburton Energy Servs., Inc., 2013-NMSC-022, ¶ 13, 303 P.3d 814 (“Where the
9 issue to be determined rests upon interpretation of documentary evidence, this Court
10 is in as good a position as the trial court to determine the facts and draw its own
11 conclusions.” (internal quotation marks and citation omitted)). The record before us
12 clearly reflects that Worker’s performance of the vocation of fast food cook was raised
13 and considered below. [RP 109, 131, 141] Moreover, Worker’s own proposed
14 findings of fact reflect that she worked as “crew person” at a fast food restaurant,
15 where her duties included “frying food, grilling food, and working on the kitchen’s
16 assembly line.” [RP 109] This is consistent with the job of fast food cook, as described
17 in the Dictionary of Occupational Titles, DOT 313.374-010 (describing a fast food
18 cook as one who “[p]repares and cooks to order foods requiring short preparation
19 time”). We do not hesitate to hold Worker to the position that she took on this matter
20 below. See generally Cordova v. Taos Ski Valley, Inc., 1996-NMCA-009, ¶¶ 13-14,
3
1 121 N.M. 258, 910 P.2d 334 (describing the function of proposed findings and
2 explaining that they narrow the scope of the issues and arguments that will be
3 considered on appeal). Although Worker contends that her duties were more
4 consistent with the job of a “fast-foods worker,” DOT 311.472-010, [W MIO 2] the
5 Dictionary of Occupational Titles defines that to principally entail taking customer
6 orders, depressing keys of multicounting machines, selecting requested food items
7 from serving or storage areas, and assembling them on serving trays or in takeout
8 bags. This is not consistent Worker’s own description of her duties. [RP 109] We
9 therefore reject Worker’s position, and we uphold the WCJ’s ultimate assignment of
10 skills points on the alternative grounds previously discussed.
11 {4} We turn next to Employer/Insurer’s memorandum in opposition, in which it
12 continues to argue that the WCJ erred in characterizing Worker’s usual and customary
13 work as heavy. [E/I MIO 1-7] Employer/Insurer asserts that Worker’s usual and
14 customary work is more appropriately regarded as medium-duty, principally because
15 she performed medium-duty work for a longer period of time. [Id.] We agree that the
16 WCJ could have arrived at the determination Employer/Insurer advocates; however,
17 that is not the nature of our inquiry on appeal. Medina v. Berg Constr., Inc., 1996-
18 NMCA-087, ¶ 19, 122 N.M. 350, 924 P.2d 1362 (“[T]he issue on appeal is whether
19 the finding made by the WCJ is supported by substantial evidence, not whether the
20 evidence would have supported different findings.”). As we previously observed, [2nd
4
1 CN 5] evidence was also presented that Worker was required to lift objects weighing
2 50 poundsas a regular component of one of the jobs that she held for years; and as
3 such, Worker had significant employment history performing heavy work. [RP 165]
4 The WCJ was at liberty to duly consider this. See Levario v. Ysidro Villareal Labor
5 Agency, 1995-NMCA-133, ¶ 14, 120 N.M. 734, 906 P.2d 266 (explaining that in this
6 context, the WCJ may consider the worker’s entire work history). And ultimately,
7 given the factual nature of the inquiry, as well as the standard of review, we conclude
8 that the WCJ’s determination is affirmable. See generally Moya v. City of
9 Albuquerque, 2008-NMSC-004, ¶ 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 prerogative
11 to determine the weight and credibility to be given to testimony and evidence.”
12 (citations omitted)).
13 {5} Accordingly, for the reasons stated, we affirm.
14 {6} IT IS SO ORDERED.
15 __________________________________
16 LINDA M. VANZI, Judge
17 WE CONCUR:
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1 _________________________________
2 J. MILES HANISEE, Judge
3 _________________________________
4 JENNIFER L. ATTREP, Judge
6