Hernandez v. City of Carlsbad

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ROBERT HERNANDEZ, Worker-Appellee, v. CITY OF CARLSBAD, Self-Insured; and CCMSI, TPA, Employer/Insurer-Appellants.

No. A-1-CA-38987

Court of Appeals of New Mexico

April 19, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Shanon S Riley, Workers' Compensation Judge

Chavez Law Firm Gonzalo Chavez Roswell, NM for Appellee

Hale & Dixon, P.C. Timothy S. Hale Albuquerque, NM for Appellants

MEMORANDUM OPINION

GERALD E. BACA, JUDGE

{¶1} The City of Carlsbad (Employer) and CCMSI (Insurer) appeal the compensation order from the Workers' Compensation Judge (WCJ) awarding Robert Hernandez (Worker) workers' compensation benefits. On appeal, Employer contends: (1) the WCJ erred in relying on the testimony of just one of the three doctors who evaluated Worker because the provider's testimony did not meet the standards for causation opinions under NMSA 1979, Section 52-1-28 (1987); and (2) this Court must reverse and find that Worker's need for a total knee replacement (TKR) is causally related to an earlier motor vehicle accident and previous surgery, rather than his work accident. For the following reasons, we affirm.

BACKGROUND

{¶2} There is no dispute that Worker had a preexisting condition with his left knee. In 2007, Worker saw Dr. Marshall Baca following a motor vehicle collision. Dr. Baca performed a physical examination and found that there was pain and popping of the meniscus together with "age-appropriate degenerative changes" to the bearing surface of the left knee joint. Worker underwent surgery to repair a "complex tear of the posterior horn of the medial meniscus" stemming from the motor vehicle accident. Dr Baca testified that the meniscus removal would not stop the arthritic process and could accelerate the process. Worker was released to return to work with no restrictions on December 11, 2007.

{¶3} On October 26, 2015, Worker was performing his duties as a water meter reader for Employer when he got out of his work vehicle, stumbled, and twisted his left knee. Worker filed a claim for workers' compensation on May 12, 2017. Following the incident, Worker was treated by three physicians: Dr. Earl Latimer, a referral from Employer's first selection health care provider; Dr. Eric Sides Worker's automatic second selection health care provider; and Dr. Daniel Wascher, who served as the independent medical examination provider. There is no dispute that Worker is a candidate for TKR. Dr. Latimer and Dr. Wascher concluded that Worker suffered a temporary exacerbation of his preexisting left knee arthritis. Dr. Sides concluded the workplace injury was an aggravation of Worker's preexisting left knee condition.

{¶4} After a hearing to determine Worker's benefits, the WCJ found that "[a]s a natural and direct result of the accident of October 26, 2015, to a reasonable degree of medical probability, Worker suffered an aggravation of his pre[]existing left knee osteoarthritis." The WCJ determined that "Dr. Sides' testimony is adequate unequivocal medical testimony sufficient to establish causation pursuant to [Section] 52-1-28 as it has been interpreted by the New Mexico higher courts." Employer moved to reconsider the compensation order, which the WCJ denied. Employer now appeals.

DISCUSSION

{¶5} "[W]hen a preexisting condition combines with a work-related injury to cause a disability, an employee is entitled to benefits commensurate with the total disability sustained." Edmiston v. City of Hobbs 1997-NMCA-085, ¶ 8, 123 N.M. 654, 944 P.2d 883. "[I]nevitability of disability (or death) plays no role in determining whether a worker's actual disability is causally related to a work-related accident." Molinar v. Larry Reetz Constr., Ltd., 2018-NMCA-011, ¶ 27, 409 P.3d 956.

{¶6} We review the whole record in workers' compensation cases to determine whether substantial evidence supports the WCJ's findings. See Lewis v. Am. Gen. Media, 2015-NMCA-090, ¶ 17, 355 P.3d 850. "The [WCJ's] findings will not be disturbed so long as they are supported by substantial evidence on the record as a whole." Tallman v. ABF (Arkansas Best Freight), 1988-NMCA-091, ¶ 15, 108 N.M. 124, 767 P.2d 363. "Substantial evidence is credible evidence in light of the whole record that is sufficient for a reasonable mind to accept as adequate to support the conclusion." Maez v. Riley Indus., 2015-NMCA-049, ¶ 9, 347 P.3d 732 (citation omitted) (text only). It is well recognized in New Mexico that the testimony of a single witness, if found credible by the fact-finder, is sufficient to constitute substantial evidence. Autrey v. Autrey, 2022-NMCA-042, ¶ 9, 516 P.3d 207, cert. granted (S-1-SC-39371, Aug. 10, 2022). We review the evidence in the light most favorable to the decision, and "[w]e defer to the [WCJ]'s resolution of conflicts in the evidence." Rodriguez v. McAnally Enters., 1994-NMCA-025, ¶ 11, 117 N.M. 250, 871 P.2d 14. "Whole record review is not an excuse for an appellate court to reweigh the evidence and replace the fact[-]finder's conclusions with its own." Herman v. Miners' Hosp., 1991-NMSC-021, ¶ 10, 111 N.M. 550, 807 P.2d 734. Yet, "[w]hile we generally may not weigh the evidence, even under whole record review, such review allows the reviewing court greater latitude to determine whether a finding of fact was reasonable based on the evidence." Maez v. Riley Indus., 2015-NMCA-049, ¶ 10, 347 P.3d 732 (internal quotation marks and citation omitted). This is especially true "when reviewing an issue for which the evidence is documentary in nature," id., as is the case here. In a case where "all or substantially all of the evidence on a material issue is documentary or by deposition, an appellate court may examine and weigh it," id. (citation omitted) (text only); because "[w]here the issue to be determined rests upon interpretation of documentary evidence, [appellate courts are] in as good a position as the trial court to determine the facts and draw [their] own conclusions." Flemma v. Halliburton Energy Servs., Inc., 2013-NMSC-022, ¶ 13, 303 P.3d 814 (internal quotation marks and citation omitted). However, even in that case "we will not disturb the WCJ's findings unless they are manifestly wrong or clearly opposed to the evidence." Maez, 2015-NMCA-049, ¶ 10 (text only).

Worker Met His Burden to Establish Causation

{¶7} Section 52-1-28(B), the statute on causation, states:

In all cases where the employer or his insurance carrier deny that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider, as defined [elsewhere in the statute] testifying within the area of his expertise.

"To be compensable, a worker's accident need not be the sole cause of his disability or death; a worker need only show that it was a contributing cause." Molinar, 2018-NMCA-011, ¶ 29 (alteration, internal quotation marks, and citation omitted). "Section 52-1-28(B) requires the worker to establish causation as a probability by expert testimony of a health care provider in cases where the employer disputes a causal connection between the accident and the disability." Molinar, 2018-NMCA-011, ¶ 29 (internal quotation marks and citation omitted). "Causation exists within a reasonable medical probability when a qualified medical expert testifies as to his opinion concerning causation and, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action." Id. ¶ 28 (internal quotation marks and citation omitted). "New Mexico has adopted the uncontradicted medical evidence rule." Id. ¶ 30. "The rule is based on Section 52-1-28(B), which requires the worker to prove causal connection between disability and accident as a medical probability by expert medical testimony. Because the statute requires a certain type of proof, uncontradicted evidence in the form of that type of proof is binding on the trial court." Molinar, 2018-NMCA-011, ¶ 30 (alteration, internal quotation marks, and citation omitted). But the uncontradicted medical evidence rule is not applicable when "a conflict arises in the proof, with one or more experts expressing an opinion one way, and others expressing a diametrically contrary opinion, the trier of the facts must resolve the disagreement and determine what the true facts are." Id. (internal quotation marks and citation omitted). "However, there must be a rational basis for the WCJ to reject a proposed finding of causation." Id. "[W]here the worker has initially established causation through expert testimony, the burden of production should be upon an employer to show that the effects of the preexisting condition are identifiably separate and unrelated." Id. (internal quotation marks and citation omitted). "In a case such as this involving a preexisting condition, WCJs must take care not to rely on the fact that the worker's preexisting condition may have potentially become just as disabling without an accidental injury in determining whether causation has been established." Id. ¶ 27. Accordingly, we first consider whether Worker met his burden under Section 52-1-28. We note that Employer does not dispute that the October 2015 accident caused Worker's left knee injury and that the injury is considered a compensable work-related injury.

Dr. Eric Sides' Testimony

{¶8} Dr. Sides diagnosed Worker's condition to a reasonable degree of medical probability as osteoarthritis of the...