{ "id": 12167649, "name": "MANUEL VALENZUELA, Worker-Appellant, v. A.S. HORNER, INC. and MOUNTAIN STATES MUTUAL CASUALTY COMPANY, Employer/Insurer-Appellees", "name_abbreviation": "Valenzuela v. A.S. Horner, Inc.", "decision_date": "2016-01-13", "docket_number": "No. S-1-SC-35754; Docket No. 33,524", "first_page": "524", "last_page": "529", "citations": [ { "type": "official", "cite": "2016-NMCA-031" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1999-NMCA-030", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827318 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0725-01" ] }, { "cite": "2005-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929180 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0497-01" ] }, { "cite": "2007-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692438 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0605-01" ] }, { "cite": "2008-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783238 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0258-01" ] }, { "cite": "120 N.M. 801", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558963 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/120/0801-01" ] }, { "cite": "1995-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6 23" }, { "page": "\u00b6 24" } ], "opinion_index": 0 }, { "cite": "2009-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243724 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6 12" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0453-01" ] }, { "cite": "118 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563492 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/118/0682-01" ] }, { "cite": "1994-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "108 N.M. 658", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592829 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/108/0658-01" ] }, { "cite": "1989-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 17-18" } ], "opinion_index": 0 }, { "cite": "61 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318664 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/61/0412-01" ] }, { "cite": "1956-NMSC-081", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 21-22" } ], "opinion_index": 0 }, { "cite": "65 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845954 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0307-01" ] }, { "cite": "1959-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 16, 22" } ], "opinion_index": 0 }, { "cite": "301 P.3d 387", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4333882 ], "pin_cites": [ { "page": "\u00b6\u00b6 14, 16" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0099-01" ] }, { "cite": "119 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561240 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0436-01" ] }, { "cite": "1995-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827368 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0691-01" ] } ], "analysis": { "cardinality": 760, "char_count": 14956, "ocr_confidence": 0.786, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24682848305055624 }, "sha256": "8e2fce77d1a4e66faf064de239acb4bda23dea5336ecb698cf6716d7aff9f061", "simhash": "1:502fffce26e9347a", "word_count": 2364 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "M. MONICA ZAMORA, Judge", "JAMES J. WECHSLER, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "MANUEL VALENZUELA, Worker-Appellant, v. A.S. HORNER, INC. and MOUNTAIN STATES MUTUAL CASUALTY COMPANY, Employer/Insurer-Appellees." ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\n{1} Manuel Valenzuela (Worker) appeals a workers\u2019 compensation judge\u2019s (WCJ) order rating his permanent impairment at zero percent. W orker argues that the W C J erred in relying solely on an inadmissible independent medical examination (IME) report as the basis for determining that Worker reached maximum medical improvement (MMI) with an impairment rating of zero percent. As a matter of first impression, we must decide whether an IME report itself is admissible under any exception to the hearsay rule. We conclude that it is not and agree with Worker that admission of the IME report without supporting testimony was reversible error.\nI. BACKGROUND\n{2} Worker suffered compensable injuries to his spine and right foot in the course and scope of his employment with A.S. Horner, Inc. on May 18, 2011. A.S. Horner was insured by Mountain States Mutual Casualty Co., Inc. (both referred to as Employer herein). Worker continued to work for Employer at a light duty restriction. Employer paid for the cost of treatment provided by Worker\u2019s authorized health care providers (HCPs). In March 2012 Dr. Thomas Whalen, Worker\u2019s treating physician and authorized HCP, referred Worker to Dr. Richard Miller for a consultation on the foot injury. Dr. Whalen also referred Worker to Dr. James Harrington for a consultation on the spine injury. Employer did not immediately authorize the referral to Dr. Miller, and denied the referral to Dr. Harrington.\n{3} On April 13, 2012, Worker underwent a panel IME with Dr. Marjorie Eskay-Auerbach and Dr. Roya Mirmiran. The IME panel concluded that Worker reached MMI with respect to both his back and foot injuries on April 13, 2012.\n{4} On May 23, 2012, Worker filed a complaint for workers\u2019 compensation benefits, disputing the findings of the IME report. Worker continued treatment with his HCP, who wrote a letter in June 2012 disputing the findings of the IME report and seeking authorization to refer Worker to Dr. Miller. On June 26,2013, Worker saw Dr. Miller who determined that Worker would not likely benefit from surgical treatment, but that Worker would benefit from a \u201ccustom Plastazote insole\u201d and accommodative shoes. Worker\u2019s employment was terminated on August 1,2012, due to a workforce reduction. Worker received temporary total disability (TTD) payments beginning August 8, 2012.\n{5} A formal hearing on Worker\u2019s claim was held on October 22, 2013. The deposition testimony of Dr. Whalen was admitted into evidence without objection. Dr. Whalen testified that Worker had not reached MMI and that an impairment rating could not be determined until MMI was reached. Employer offered the IME report as evidence, and the report was admitted over Worker\u2019s objection. The WCJ entered a compensation order on January 10, 2014, finding that Worker had a continuing need for medical care stemming from the work-related condition and that the custom insole and accommodative shoes recommended by Dr. Miller were reasonable and necessary medical care related to Worker\u2019s accident. Based on the IME report, the WCJ found that Worker reached MMI for his injuries on April 13,2012 and that W orker had zero percent permanent physical impairment. Worker filed a motion for reconsideration and/or clarification of the compensation order regarding the WCJ\u2019s ruling on Worker\u2019s MMI and permanent impairment rating. The WCJ did not reconsider the MMI or impairment ruling. This appeal followed.\nII. DISCUSSION\n{6} Worker argues that Employer failed to authenticate or lay a sufficient foundation for the admission of the IME report, and the report therefore, constitutes inadmissible hearsay. Worker further argues that the WCJ erred in adopting the IME report, disregarding substantial admissible evidence contradicting the IME report\u2019s conclusions with respect to Worker\u2019s MMI and impairment rating.\nA. Admissibility of Medical Evidence Under the Workers\u2019 Compensation Act\n{7} Once an employer has notice of a work-related accident, it is required under the Workers\u2019 Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (1929, as amended through 2015) (the Act), to \u201cprovide the worker in a timely manner reasonable and necessary health care services from a health care provider.\u201d Section 52-1-49(A). In doing so, the employer is entitled to make the initial HCP selection or to permit Worker to make the selection. See Section 52-1-49(33). If there is a disputed medical issue, such as \u201cthe reasonableness or necessity of medical or surgical treatment, the date upon which [MMI] was reached, [or] the correct impairment rating for the worker, [and] the parties cannot agree upon the use of a specific independent medical examiner, either party may petition a workers\u2019 compensation judge for permission to have the worker undergo an [IME].\u201d Section 52-l-51(A). \u201cOnly a[n HCP] ... or [IME provider] may offer testimony at any workers\u2019 compensation hearing concerning the particular injury in question.\u201d See Section 52-1-51(C). Employer asserts that the IME report constitutes admissible medical testimony under Section 52-l-51(C). Worker concedes that if the report was not hearsay it could be considered medical testimony for the purposes of admissibility under the statute.\nB. The IME Report Constitutes Inadmissible Hearsay\n{8} The parties do not dispute that an IME report constitutes hearsay. A hearsay statement consists of an out-of-court statement offered to prove the truth of the matter asserted. Rule 11-801(C) NMRA 2003. An out-of-court statement is inadmissible unless it is specifically excluded as non-hearsay under Rule 11-801 (D) or falls within a recognized exception in the rules of evidence, see, e.g., Rule 11-803 NMRA 2003, or is otherwise made admissible by rule or statute. Rule 11-802. This Court reviews the WCJ\u2019s determination of whether testimony is within exceptions to the hearsay rule for an abuse of discretion. State v. Salgado, 1999-NMSC-008, \u00b6 5, 126 N.M. 691, 974 P.2d 661.\n{9} The Workers\u2019 Compensation Administration (WCA) has adopted by regulation the rules of evidence and rules of civil procedure for the district courts of New Mexico, and the rules apply to and govern proceedings within the adjudication of workers\u2019 compensation claims unless the regulations otherwise state or necessarily imply. See 11.4.4.13(K) NMAC (10/1/2015). The regulations limit the presentation of medical testimony, barring the use of live testimony, unless ordered by the WCJ. 11.4.4.13(D)(1) NMAC (\u201cLive medical testimony shall not be permitted, except by an order of the judge.\u201d). Instead, the WCA regulations provide that certain documents may be admitted into evidence without additional foundational testimony. Thus, \u201c[a] form letter to [an] HCP, completed by an authorized HCP may be admitted into evidence.\u201d 11.4.4.13(D)(2) NMAC. In addition, \u201c[d]eposition testimony of authorized HCPs shall be admissible, in lieu of live testimony.\u201d 11.4.4.13(E)(4) NMAC. The regulations limit admissibility of documents to these two circumstances and do not provide for admission of any other documentary evidence as an exception to the hearsay rule. In contrast, the WCA regulations are silent with regard to the admission of an IME provider\u2019s written evaluation report. Thus, the rules of evidence govern the admissibility of the IME report.\n{10} We agree with Worker that under the rules of evidence the IME report is inadmissible hearsay. See Rule 11-801 (C) NMRA (providing that an out of court statement that is offered in evidence to prove the truth of the matter asserted in the statement constitutes hearsay); Rule 11-802 NMRA (stating that hearsay is inadmissible in the absence of a specific exception). Employer offered the IME report as evidence of the truth of the assertion that W orker had reached MMI with an impairment rating of zero percent, and therefore was hearsay. Employer does not argue that the IME report is admissible under any exception and we see no basis for admitting the report without implicating Worker\u2019s right to due process. See Camino Real Mobile Home Park P'ship v. Wolfe, 1995-NMSC-013, \u00b6 37, 119 N.M. 436, 891 P.2d 1190 (\u201cHearsay statements are generally considered to be unreliable because they are not given under oath and cannot be tested by cross-examination to determine the truthfulness of the declarant.\u201d), overruled on other grounds by Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop, 2013-NMSC-017, \u00b6\u00b6 14, 16, 301 P.3d 387; Ennen v. Sw. Potash Co., 1959-NMSC-025, \u00b6\u00b6 16, 22, 65 N.M. 307, 336 P.2d 1062 (holding that two doctors\u2019 reports admitted to show a worker\u2019s decreased impairment rating constituted inadmissible hearsay, explaining that \u201c[ijtwouldnotrequire the citation of authority to support the proposition that a witness may not give testimony in a cause unless he is placed under oath and the other party is given an opportunity to cross-examine him\u201d); Waldroop v. Driver-Miller Plumbing & Heating Corp., 1956-NMSC-081, \u00b6\u00b6 21-22, 61 N.M. 412, 301 P.2d 521 (affirming the exclusion of a written medical report in a workers\u2019 compensation hearing; stating that \u201c[i]t requires no citation of authority to show that the excluded testimony is clearly hearsay\u201d); see also State ex rel. Battershell v. City of Albuquerque, 1989-NMCA-045, \u00b6\u00b6 17-18, 108 N.M. 658, 777 P.2d 386 (recognizing that administrative proceedings adjudicating substantial rights are bound by fundamental principles of justice and procedural due process, which require that testifying witnesses be sworn and be subject to cross-examination).\n{11} We see no basis for creating an exception where none exists. We hold that an IME report admitted as stand-alone evidence concerning a worker\u2019s medical condition constitutes hearsay subject to no exceptions in the rule, statutes or regulations. Accordingly, the WCJ erred in admitting the IME in this case and relying solely on it as a basis for determining that Worker reached maximum medical improvement with a zero percent impairment rating.\n{12} We recognize that a doctor\u2019s unsworn written evaluation report does not fit the traditional definition of testimony. See Black\u2019s Law Dictionary 1704 (10th ed. 2014) (defining \u201ctestimony\u201d as \u201c[e]vidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition\u201d). We also note that New Mexico case law does not clearly establish that documentary evidence, such as medical records and doctor\u2019s reports, constitutes medical testimony under Section 52-1-51(C). In Lopez v. City of Albuquerque, 1994-NMCA-122, 118 N.M. 682, 884 P.2d 838, this Court stated that under Section 52-l-51(C) the rule is \u201cthat only authorized health care providers may give evidence,\u201d implying that the Section 52-1-51(C) limitation applies to any medical evidence instead of just medical testimony. Lopez, 1994-NMCA-122, \u00b6 12 (emphasis added). This statement ofthe rule was recently cited with approval by our Supreme Court in Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 33, 146 N.M. 453, 212 P.3d 341. However, we also stated in Lopez that medical records from a provider who was neither an HCP nor an IME provider were inadmissible, since the provider \u201cwas not one of the only two types of [HCP]s which may provide testimony at compensation hearings [under Section 52-1-51 (C)].\" Lopez, 1994-NMCA-122, \u00b6 13 (emphasis added). In Jurado v. Levi Strauss & Co., 1995-NMCA-129, 120 N.M. 801, 907 P.2d 205, we interpreted this statement in Lopez as a presupposition that medical records constitute testimony under Section 52-l-51(C). Jurado, 1995-NMCA-129, \u00b6 23. Based on our reading of Lopez, we held a doctor\u2019s written evaluation report also constituted testimony, such that it was subject to the statute\u2019s limitation on the types of medical testimony admissible at the compensation hearing. Jurado, 1995-NMCA-129, \u00b6 24. Because the outcome in this case does not turn on whether the IME report at issue is considered testimony or documentary evidence, but rather on whether the report is inadmissible hearsay, we need not address any inconsistency or ambiguity in these decisions.\nC. Lack of Substantial Evidence To Support WCJ\u2019s Compensation Order\n{13} We review the findings of the WCJ \u201cunder a whole record standard of review.\u201d Moya v. City of Albuquerque, 2008-NMSC-004, \u00b6 6, 143 N.M. 258, 175 P.3d 926. Whole record review involves a review of all the evidence bearing on the WCJ\u2019s decision in order to determine if there is substantial evidence to support the result. See Leonard v. Payday Prof\u2019l, 2007-NMCA-128, \u00b6 10, 142 N.M. 605, 168 P.3d 177. \u201cWe view the evidence in the light most favorable to the decision[.]\u201d Dewitt v. Rent-A-Ctr., Inc., 2009-NMSC-032, \u00b6 12, 146 N.M. 453, 212 P.3d 341. \u201cSubstantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency\u2019s decision,\u201d and we will not \u201creweigh the evidence nor replace the fact[-]finder\u2019s conclusions with our own.\u201d Id. (citation omitted). \u201cWhere the testimony is conflicting, the issue on appeal is not whether there is evidence to support a contrary result, but rather whether the evidence supports the findings of the trier of fact.\u201d Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, \u00b6 13, 137 N.M. 497, 113 P.3d 320 (internal quotation marks and citation omitted).\n{14} Here, neither Worker nor Employer disputes that the only evidence supporting the WCJ\u2019s determination that Worker reached MMI, with an impairment rating of zero percent, was the inadmissible IME report. Aside from the report, the only evidence relevant to Worker\u2019s MMI and impairment rating was the deposition testimony of Dr. Whalen. See Smith v. Cutler Repaving, 1999-NMCA-030, \u00b6 10, 126 N.M. 725, 974 P.2d 1182 (\u201cKey to determining MMI is expert medical testimony regarding whether the injured worker is more likely than not to recover further.\u201d (internal quotation marks and citation omitted)). According to Dr. Whalen, Worker had not yet reached MMI, so the level of Worker\u2019s impairment could not be assessed. After a review of all the admissible evidence, there is no evidence to support the WCJ\u2019s decision. We conclude that there is no substantial evidence in the record to support the WCJ\u2019s conclusions concerning Worker\u2019s MMI and impairment rating.\nIII. CONCLUSION\n{15} Based on the foregoing reasons, we reverse the WCJ\u2019s compensation order.\n{16} IT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nLINDA M. VANZI, Judge", "type": "majority", "author": "ZAMORA, Judge." } ], "attorneys": [ "Eaton & Eaton Law, P.C. Kathryn L. Eaton Los Ranchos, NM for Appellant", "The Law Offices of Robert Bruce Collins Robert Bruce Collins Holly R. Harvey Julie A. Koschtial Audra Davie Albuquerque, NM for Appellees" ], "corrections": "", "head_matter": "Certiorari Denied, March 10, 2016,\nNo. S-1-SC-35754\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-031\nFiling Date: January 13, 2016\nDocket No. 33,524\nMANUEL VALENZUELA, Worker-Appellant, v. A.S. HORNER, INC. and MOUNTAIN STATES MUTUAL CASUALTY COMPANY, Employer/Insurer-Appellees.\nEaton & Eaton Law, P.C. Kathryn L. Eaton Los Ranchos, NM for Appellant\nThe Law Offices of Robert Bruce Collins Robert Bruce Collins Holly R. Harvey Julie A. Koschtial Audra Davie Albuquerque, NM for Appellees" }, "file_name": "0524-01", "first_page_order": 540, "last_page_order": 545 }