Guggino v. Sw. Primary Learning Ctr.

PAUL MARIO GUGGINO, Worker-Appellant, v. SOUTHWEST PRIMARY LEARNING CENTER;SOUTHWEST INTERMEDIATE LEARNING CENTER;SOUTHWEST SECONDARY LEARNING CENTER;SOUTHWEST AERONAUTICS, MATHEMATICS AND SCIENCES ACADEMY; andNEW MEXICO PUBLIC SCHOOLS INSURANCE AUTHORITY, Employer/Insurer-Appellees.

No. A-1-CA-37633

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 26, 2020

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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.

APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION

Leonard J. Padilla, Workers' Compensation Judge

Law Offices of E. Justin Pennington

E. Justin Pennington

Albuquerque, NM

for Appellant

Allen, Shepherd, Lewis & Syra, P.A.

Kimberly A. Syra

Albuquerque, NM

for Appellees

MEMORANDUM OPINION

B. ZAMORA, Judge.

{1} Mario Guggino (Worker) appeals from the Workers' Compensation Judge's (WCJ) order denying his claim for workers' compensation benefits. Worker claims the WCJ erred in finding that: (1) Worker failed to provide legally sufficient notice of his claimed work-related injury; (2) Worker's complaint is barred by the statute of limitations; (3) the testimony of Worker's health care provider (HCP) was inadmissible; and (4) Worker did not sustain a compensable injury. We agree with Worker on all points, and therefore reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

{2} Worker was employed as the Chief Financial Officer (CFO), for Southwest Learning 2Center (Employer). In February 2014 Worker discovered evidence of several million dollars' worth of fraud and misuse of public funds committed by Employer's Executive Director, Scott Glasrud. Worker informed the Office of the State Auditor (OSA) of the suspected misconduct in the Spring 2014 and the OSA then referred the case to the Federal Bureau of Investigation (FBI). Worker became a confidential informant (CI) for the FBI to help investigate the allegations of fraud against Glasrud in June 2014. Over the course of the next two months, while acting as a CI, Worker provided copies of Employer's documents and financial data to the FBI, and secretly recorded conversations with Glasrud and other suspected employees using a portable device placed in his shirt. During this period, Worker had several hostile encounters with Glasrud, and eventually installed security equipment around his home because he was afraid for his safety and the safety of his family.

{3} Based on the information provided by Worker, the FBI executed a search warrant on Employer's offices on July 30, 2014. Worker testified that during the search, all employees, including Worker, were removed from their workspace and were generally "shocked, dismayed, sense of bewilderment [and] confus[ed]." Defendant was aware that the search was coming and was terrified the day it occurred. In the month following the FBI's search, Worker admitted to Employer that he was the CI. He told Employer that as the CFO, he believed he would be terminated for failing to report and prevent the financial fraud committed by Glasrud. Worker testified that his work environment deteriorated after his disclosure. Employer revoked Worker's access to his computer, severely restricted his ability to operate the finances because he was "unable to create new transactions," and required him to report to several new supervisors. In September 2014 Worker requested six weeks of leave, pursuant to the Family Medical Leave Act (FMLA). Worker never returned to his job and was officially terminated on June 10, 2015. After his termination, and at the recommendation of his primary care physician, Worker attempted to find a counselor but was rejected by several counselors due to his inability to pay the cost of treatment that resulted from his unemployment and pending litigation. Worker finally began treatment with Carol Henry, a licensed professional clinical counselor, in June 2016. Henry diagnosed Worker with Post Traumatic Stress Disorder (PTSD), and on October 14, 2016, Worker filed a Workers' Compensation complaint. The matter proceeded to trial before the WCJ on May 3, 2018.

{4} Prior to trial, the WCJ granted Employer's motion in limine to exclude Henry's testimony because she was not an authorized HCP, under NMSA 1978, Section 52-4-1 (2007). Worker then filed an uncontested change of HCP, naming Gerald Fredman, M.D. At the pre-trial hearing, Worker proffered Dr. Fredman's deposition testimony, which had multiple exhibits attached, including deposition testimony from Henry. The WCJ admitted Dr. Fredman's testimony but deferred ruling with respect to admission of all the attached exhibits. Despite admitting Dr. Fredman's testimony at trial, in its findings of fact and conclusions of law, the WCJ sua sponte found that "Dr. Fredman is not a treating HCP, is not an authorized IME provider, and his testimony . . . is hereby ruled inadmissible, along with all exhibits attached thereto." The WCJ also found that Worker had failed to provide notice as required by NMSA 1978, Section 52-1-29(A) (1990), failed to file a claim for benefits within the applicable statute of limitations, and had not suffered a compensable injury, as defined by NMSA 1978, Section 52-1-24(B) (1990). The WCJ dismissed Worker's claim with prejudice.

DISCUSSION

I. Standard of Review

{5} "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. "We will affirm the agency's decision if, after taking the entire record into consideration, there is evidence for a reasonable mind to accept as adequate to support the conclusion reached." Id. (internal quotation marks and citation omitted). "The agency's findings will not be disturbed so long as they are supported by substantial evidence on the record as a whole." Tallman v. ABF, 1988-NMCA-091, ¶ 15, 108 N.M. 124, 767 P.2d 363. To the extent the WCJ's rulings involved an interpretation and application of the law, we review the WCJ's interpretation of a statute and application of the law to the facts de novo. Molinar v. Larry Reetz Constr., Ltd., 2018-NMCA-011, ¶¶ 19-20, 409 P.3d 956.

II. Notice of Worker's Claim

{6} Worker argues he provided timely notice to Employer pursuant to the Workers Compensation Act (the Act), because he provided notice once he became aware he had a compensable injury. We agree.

{7} The Act requires that a worker "claiming to be entitled to compensation" for an injury must give notice to the employer within fifteen days "after the worker knew, or should have known, of its occurrence[.]" Section 52-1-29(A). "[T]he time period in which notice of a claim must be given begins when the worker recognizes or should recognize the nature, seriousness, and probable compensable character of the injury." Flint v. Town of Bernalillo, 1994-NMCA-078, ¶ 12, 118 N.M. 65, 878 P.2d 1014 (internal quotation marks and citation omitted). For a latent injury, "the statutory clock does not start ticking until the worker knew, or should have known by the exercise of reasonable diligence," that his injury was compensable. Baca v. Los Lunas Cmty. Programs,2011-NMCA-008, ¶ 19, 149 N.M. 198, 246 P.3d 1070 (alteration, internal quotation marks and citation omitted). General awareness of work-related "emotional and behavioral problems" is not enough for Worker to know he has a compensable injury. Flint, 1994-NMCA-078, ¶ 14.

{8} Here, the WCJ found that Worker should have known he had sustained a compensable injury no later than October 16, 2014, when Worker's primary care physician submitted an FMLA certification for "work-related emotional stress." The certification stated that the "stress of work environment" caused "intolerable anxiety [and] depression." We are unpersuaded that this evidence alone established Worker knew he had a compensable injury. We have previously clarified that "layoffs, changes in personnel, and other setbacks" similar to what Worker experienced at the time of the FMLA certification, do not rise to the level of a compensable injury. Jensen v. N.M. State Police, 1990-NMCA-007, ¶ 18, 22, 109 N.M. 626, 788 P.2d 382. Notably, Worker and his primary care physician were unaware in 2014 that he had PTSD resulting from the work-related incidents which included the FBI search of the building, hostile confrontations with Glasrud, and the multiple occasions Worker was required to secretly record Glasrud. Instead, Worker became aware that his injury was a compensable injury in September 2016 after his counselor diagnosed him with PTSD.¹ See Flint, 1994-NMCA-078, ¶ 14 (observing that "[a]n uneducated worker is not charged with medical knowledge which apparently transcends that possessed by the attending physician," and holding that the diagnosis of PTSD four years after the traumatic event occurred did not bar worker's claim due to notice (internal quotation marks and citation omitted)). And he gave notice to Employer on September 27, 2016, thirteen days after he became aware that he had a compensable injury. We conclude that substantial evidence did not support the WCJ's finding that Worker knew or should have known he had a compensable claim no later than October 2014. See Flint, 1994-NMCA-078, ¶ 17 ("We agree with [the worker] that he could not reasonably be expected to know that he suffered from a compensable injury until . . . the date he was first diagnosed with PTSD[.]").

III. Statute of Limitations

{9} The next issue raised by Worker is whether the WCJ erred in finding that the statute of limitations barred Worker's complaint. The WCJ found that because Worker ceased working in September 2014, he knew of his injury at the latest in October 2014, filed his complaint in October 2016, and therefore failed to file his...