Plomer v. Workers' Comp. Admin. ( 2023 )

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39277
MARK PLOMER,
Worker-Appellee,
v.
WORKERS’ COMPENSATION
ADMINISTRATION and NEW MEXICO
RISK MANAGEMENT DIVISION,
Employer/Insurer-Appellants.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry Kramer, Hearing Officer
Gerald A. Hanrahan
Albuquerque, NM
for Appellee
Paul L. Civerolo, LLC
Paul L. Civerolo
Albuquerque, NM
for Appellants
MEMORANDUM OPINION
IVES, Judge.
{1} The Workers’ Compensation Administration (Employer) appeals an amended
compensation order awarding benefits to its employee, Mark J. Plomer (Worker).
Employer argues that (1) the order is final for appeal; (2) Worker failed to provide
Employer with timely notice of the accident under NMSA 1978, Section 52-1-29(A)
(1990); and (3) the Workers’ Compensation Judge (WCJ) erred in finding that Dr. Drew
Newhoff, from whom Worker obtained treatment, was an authorized healthcare provider
(HCP) and by admitting his testimony on causation. We affirm.
DISCUSSION
I. The Amended Compensation Order Is Final for Appeal
{2} As a threshold matter, we briefly consider whether the WCJ’s order is final and
therefore appealable. In the order, the WCJ concluded that Worker’s claim for indemnity
benefits was “premature,” presumably because the WCJ also found that Worker had not
reached maximum medical improvement—a prerequisite for entitlement to such
benefits. See NMSA 1978, § 52-1-26 (2017).
{3} Because this Court’s jurisdiction is limited to review of final orders, Sanchez v.
Bradbury & Stamm Const., 1989-NMCA-076, ¶¶ 10, 14, 109 N.M. 47, 781 P.2d 319, we
initially expressed reservations about reviewing an order that could be considered non-
final due to Worker’s unresolved indemnity benefits claim. Accordingly, we asked the
parties to brief the issue. Employer argues, and Worker concedes, that the order is final
for appeal.
{4} While we are not bound by Worker’s concession, see Tucson Elec. Power Co. v.
Tax’n & Revenue Dep’t, 2020-NMCA-011, ¶ 10, 456 P.3d 1085, we accept it under the
circumstances. The WCJ determined all issues of law and fact—including timely notice
and causation—to the fullest extent possible to determine that Worker sustained a
compensable injury. See B.L. Goldberg & Assocs., Inc. v. Uptown, Inc., 1985-NMSC-
084, ¶ 3, 103 N.M. 277, 705 P.2d 683 (explaining that an order is considered final
where “all issues of law and fact have been determined and the case disposed of by the
trial court to the fullest extent possible”). In view of this and given the issue of indemnity
benefits is premature, we do not believe that this remaining issue destroys finality in this
case because its resolution would not alter, moot, or revise the WCJ’s underlying
determination that Worker sustained a compensable injury. See Kelly Inn No. 102, Inc.
v. Kapnison, 1992-NMSC-005, ¶ 21, 113 N.M. 231, 824 P.2d 1033 (clarifying that “a
question remaining to be decided [] will not prevent [a] judgment from being final if
resolution of that question will not alter the judgment or moot or revise decisions
embodied therein”); cf. Alcala v. St. Francis Gardens, 1993-NMCA-134, ¶¶ 7-8, 12, 11,
116 N.M. 510, 864 P.2d 326 (holding that, where there was a pending compensation
claim, an interim order awarding attorney fees was not final for appeal because
“developments in the compensation case [could] alter or revise the attorney fees
order”).
II. Worker Provided Employer With Legally Adequate Notice
{5} Another threshold issue is whether Worker provided Employer with a timely
notice of accident. When a worker fails to give timely notice under Section 52-1-29, the
right to recover compensation is “forever barred.” NMSA 1978, § 52-1-31(A) (1987).
Towards this end, Employer asks this Court to reverse the WCJ’s conclusion that
Worker provided Employer with legally adequate notice of the accident under Section
52-1-29(A). Because this conclusion of law must be supported by a finding of ultimate
fact, see Torres v. Plastech Corp., 1997-NMSC-053, ¶ 13, 124 N.M. 197, 947 P.2d 154;
see also Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 31, 137 N.M. 497, 113
P.3d 320 (characterizing the date of disability as an ultimate fact necessary to
determine notice), we first review whether the WCJ’s finding that Worker sustained a
disabling work accident on March 18, 2019, is supported by substantial evidence. See
Tom Growney Equip. Co., 2005-NMSC-015, ¶ 13. Under this whole record standard of
review, we view the evidence in the light most favorable to the agency decision but do
not disregard contravening evidence. Ortiz v. Overland Express, 2010-NMSC-021, ¶ 24,
148 N.M. 405, 237 P.3d 707. We then review de novo whether Worker gave timely
notice under Section 52-1-29(A). See Tom Growney Equip. Co., 2005-NMSC-015, ¶ 13.
{6} Employer argues that, because Worker sustained a previous work-related injury
involving the same hand in 2009 and experienced numbness and tingling in that hand
intermittently between 2009 and March 18, 2019, he is charged with knowledge that he
sustained a compensable injury such that he should have notified Employer of that
injury earlier than March 2019.1 We disagree.
{7} In order to be eligible for workers’ compensation, a worker must “give notice in
writing to [the] employer of the accident within fifteen days after the worker knew, or
should have known, of its occurrence.” Section 52-1-29(A). Where “employment activity
itself aggravates a preexisting injury and results in disability,” as it did here, New Mexico
precedent “does not require a discrete ‘accident,’ in the traditional sense.” Tom
Growney Equip. Co., 2005-NMSC-015, ¶ 27. Instead, in such cases, a worker sustains
an accidental injury if the worker (1) experiences preexisting conditions from a previous
accident incurred during the worker’s employment, (2) continues normal employment
under pain, and (3) subsequently suffers a disability that was caused or accelerated
while working. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, ¶ 31, 92 N.M.
635, 593 P.2d 470; see also Tom Growney Equip. Co., 2005-NMSC-015, ¶¶ 28, 35.
{8} In this case, the WCJ’s finding that Worker sustained a disabling work accident
on March 18, 2019, is supported by substantial evidence. The WCJ found the following
facts, which are unchallenged on appeal: Worker sustained a work-related accident in
2009, which involved his right wrist and hand; Worker received medical treatment for
1In making this argument, Employer relies on the “latent injury rule” from Garnsey v. Concrete Inc. of
Hobbs, 1996-NMCA-081, 122 N.M. 195, 922 P.2d 577. We are not persuaded that this rule applies to the
facts of the instant case. In Garnsey, the worker was involved in a work accident but did not discover the
injury until later. Id. ¶¶ 2-4. In such cases, “the statutory clock [does] not start ticking until the worker
[knows], or should [know] by the exercise of reasonable diligence, that [the worker] ha[s] sustained a
compensable injury.” Id. ¶ 12. “The injury, not the accidental occurrence, [is] determinative” for purposes
of calculating the requisite notice period. Id. However, Garnsey is inapposite here because Worker did not
sustain a latent injury. After the incident on March 18, 2019, Worker immediately discovered that he had
suffered an injury that caused symptoms more severe and of a different character and quality than the
occasional numbness and tingling sensations he had experienced before the incident such that he could
no longer adequately perform necessary work activities. Under these circumstances, the latent injury rule
does not apply.
this injury, which “resolve[d] the problems Worker was having with his right upper
extremity”; Worker underwent an independent medical examination (IME) to evaluate
the 2009 injury; the IME included a diagnosis of “early carpal tunnel syndrome” on
Worker’s right hand; Worker experienced occasional numbing and tingling in his right
wrist and hand prior to March 18, 2019; Worker was physically able to perform all of his
regular job duties prior to March 18, 2019; while performing work activities on March 18,
2019, Worker began to experience “pain, numbness, loss of sensation, and motor loss
in his right hand”; these symptoms were “more severe and of a different character and
quality than the occasional numbness and tingling sensations he had experienced
previously as a result of these symptoms, Worker “could not adequately perform
necessary work activities”; Worker received initial treatment, which indicated that these
symptoms were consistent with carpal tunnel syndrome; Worker underwent
electromyography, which confirmed that he sustained “mild to moderate carpal tunnel
syndrome” on his right side; and Dr. Newhoff “offered a carpal tunnel release
[procedure] at the right wrist.”
{9} This evidence suffices to show that Worker sustained an accidental injury on
March 18, 2019, under the three-part test set forth in Herndon, 1978-NMCA-072, ¶ 31.
First, Worker sustained early carpal tunnel syndrome from a previous work-related
accident in 2009. Second, he continued normal employment under pain, experiencing
occasional tingling and numbness in his right hand and wrist from 2009 to March 2019.
Third, on March 18, 2019, he sustained a work accident involving the same hand to the
point of disability, which was accelerated by his continued employment and concomitant
work activities and resulted in a diagnosis of mild to moderate carpal tunnel syndrome
on the right wrist. The aggravation of the injury caused by work activity amounted to the
accident that triggered the notice requirement. See Tom Growney Equip. Co., 2005-
NMSC-015, ¶¶ 28, 35 (“This work-activity-induced aggravation of [the worker’s]
shoulder resulting in disability constituted the ‘accident’ for which [the worker] is
required to give notice.”).
{10} It is true that, as Employer points out, Worker experienced “numbness and
tingling . . . for months perhaps longer before[] March 2019.” But it was the resulting
disabling accident of March 18, 2019, that constitutes a work accident under our
precedent. And, likewise, it may be true that Worker continued to work for Employer as
the UEF Administrator after March 18, 2019, albeit in an abbreviated capacity. While
this evidence might have supported contrary findings as to the date of disability, we
conclude that the record contains substantial evidence to sustain the WCJ’s finding that
the date of disability was March 18, 2019. See Dewitt v. Rent-A-Ctr., Inc., 2009-NMSC-
032, ¶ 25, 146 N.M. 453, 212 P.3d 341.
{11} Because Worker sustained a disabling work accident on March 18, 2019, and
because it is undisputed that Worker notified his supervisor of the accident on March
18, 2019, and then completed a written “Notice of Accident” report on March 19, 2019,
which was signed by both Worker and Employer, we conclude that Worker provided
Employer notice of the accident within fifteen days. See § 52-1-29(A). Accordingly, we
hold that Worker provided Employer with timely notice.
III. Dr. Newhoff Is an Authorized HCP and the WCJ Properly Admitted His
Testimony on Causation
{12} Employer challenges the WCJ’s conclusion of law that Dr. Newhoff was an
authorized HCP. Reviewing this issue de novo, Tom Growney Equip. Co., 2005-NMSC-
015, ¶ 13, we affirm the WCJ’s determination.
{13} We note that Employer bases its claim of error on a misunderstanding of the law.
Employer insists that “[t]here is no showing that Worker followed any of the health care
provider procedures available after making his initial selection.” This assertion
presumes that Worker was required to adhere to the procedure after being denied
coverage by Employer. However, it was Employer—as the party opposing Worker’s
initial selection of HCP—that lost the right to select an HCP after it denied coverage to
Worker and subsequently failed to follow the HCP selection procedure.
{14} We summarize this procedure. Under NMSA 1978, Section 52-1-49(B) (1990),
after a worker has sustained an injury under the WCA, “[t]he employer shall initially
either select the health care provider for the injured worker or permit the injured worker
to make the selection.” This initially selected HCP shall be in effect during the first sixty
days from the date the worker receives treatment from that HCP. Id. The HCP may be
changed in one of two ways. The first method assumes that the sixty-day period has
been triggered: upon expiration of that period, the party who did not make the initial
selection may file a notice of the name and address of its choice of HCP with the other
party at least ten days before treatment begins. Section 52-1-49(C). Otherwise, the
party disagreeing with the choice of HCP of the other party is relegated to the second
method of changing an HCP: submitting a request for a change of HCP to a WCJ, which
can be submitted at any time. Section 52-1-49(E).
{15} In this case, Employer permitted Worker to make the initial HCP selection.
Worker made the initial selection and chose Dr. Deana Mercer as his treating physician.
However, Dr. Mercer never treated Worker: “When Worker attempted to see Dr. Mercer
he learned that his claim of a compensable work[-]related injury was denied by
[Employer’s insurer] and that treatment through Dr. Mercer would not be authorized.”
Because Dr. Mercer never treated Worker, the sixty-day period under Section 52-1-
49(B) was never triggered. Thus, the only way for Employer—as the party disagreeing
with Worker’s choice of HCP—to change the HCP was to submit a request to the WCJ,
which it could have done at any point. See § 52-1-49(E). But the record is devoid of
evidence that Employer actually did so.2 In support of its argument, Employer points to
case law holding that “an employer has the right to select a treating HCP for a worker
even when the employer denies a worker’s claim for benefits.” Grine v. Peabody Nat’l
2The record indicates that Employer submitted an application to the WCJ for an IME on May 22, 2020,
pursuant to NMSA 1978, Section 52-1-51 (2013). We do not consider this application as the equivalent to
a request for a change in HCP. Compare §§ 52-1-51(A)-(B) (granting discretion to the WCJ to order an
IME, which is to be performed by “a health care provider other than the designated health care provider”
chosen from an approved list authorized by a committee), with City of Albuquerque v. Sanchez, 1992-
NMCA-038, ¶ 18, 113 N.M. 721, 832 P.2d 412 (characterizing an objection to a new HCP as the
equivalent to a request for a change to an initially-selected HCP).
Res., 2006-NMSC-031, ¶ 3, 140 N.M. 30, 139 P.3d 190. However, Employer’s
interpretation of this rule is too broad. An employer has the right to select a treating
HCP only if the employer complies with the procedure set forth in Section 52-1-49.
Grine, 2006-NMSC-031, ¶ 3. By failing to properly submit a request for a change in HCP
with the WCJ, Employer (not Worker) failed to follow the statutory selection procedure.
As a consequence, we reject Employer’s argument that it was Worker’s burden to
adhere to the statutory HCP selection procedure.
{16} Because we agree with the WCJ that Dr. Newhoff was an authorized HCP, and
because it is undisputed that Dr. Newhoff treated Worker, we hold that the WCJ did not
err in admitting his testimony on causation. See NMSA 1978, § 52-1-28(B) (1987)
(mandating that a worker must establish causality by expert testimony of an HCP when
an employer or insurance carrier denies that an alleged disability was a natural and
direct result of the accident); see also § 52-1-51(C) (stating that only an HCP who has
treated the worker under Section 52-1-49 or the health care provider providing the IME
may offer testimony concerning the particular injury in question).
CONCLUSION
{17} We affirm.
{18} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
GERALD E. BACA, Judge