{ "id": 725450, "name": "Ida GALLEGOS, Claimant-Appellant, v. CITY OF ALBUQUERQUE, a self-insured employer, Respondent-Appellee", "name_abbreviation": "Gallegos v. City of Albuquerque", "decision_date": "1993-04-07", "docket_number": "No. 13730", "first_page": "461", "last_page": "466", "citations": [ { "type": "official", "cite": "115 N.M. 461" }, { "type": "parallel", "cite": "853 P.2d 163" } ], "court": { "name_abbreviation": "N.M. Ct. 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"/nm/113/0375-01" ] }, { "cite": "114 N.M. 23", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731664 ], "weight": 2, "pin_cites": [ { "page": "27" }, { "page": "1208" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0023-01" ] }, { "cite": "97 N.M. 226", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555191 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "228" }, { "page": "1073" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0226-01" ] }, { "cite": "105 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599004 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nm/105/0503-01" ] }, { "cite": "624 P.2d 535", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 0 }, { "cite": "95 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "year": 1981, "opinion_index": 0 }, { "cite": "95 N.M. 484", "category": "reporters:state", "reporter": "N.M.", 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"2023-07-14T14:46:31.960097+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MINZNER, C.J., and APODACA, J., concur." ], "parties": [ "Ida GALLEGOS, Claimant-Appellant, v. CITY OF ALBUQUERQUE, a self-insured employer, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nHARTZ, Judge.\nIda Gallegos (Worker) appeals from a disposition order of the workers\u2019 compensation administration (the Administration) which ruled that as of March 26, 1990, she had no residual disability from a January 30, 1989, accident she suffered while working for the City of Albuquerque (the City). We affirm because the workers\u2019 compensation judge (the WCJ) could rationally have determined that Worker had failed to meet her burden of establishing disability after March 25, 1990.\nThe record in this case is quite lengthy and involved. With the assistance of able briefs and oral argument by both parties we have thoroughly reviewed the evidence. We will not repeat the evidence in detail. We recite only those facts necessary to an understanding of this opinion.\nWorker was injured by a fall in a City storeroom on January 30, 1989. At the time, she held the number two administrative position in the City\u2019s Weed and Litter Division. A doctor at the City\u2019s Employee Health Center released her to work without restrictions two weeks later. During the next year Worker worked episodically, sometimes with restrictions. She complained of various ailments, including headaches and pain in her neck, shoulder, lower back, and right leg. Twice she fell at her home, each time injuring a finger. Worker\u2019s treating physicians originally believed that the first fall was caused by her back injury of January 30, 1989. On February 21, 1990, Dr. Barry Diskant, medical director of the City\u2019s Employee Health Center, placed Worker on leave. She was complaining of pain and he thought that she could not continue working in a job which required \u201ca lot of driving.\u201d At the hearing before the WCJ both parties presented evidence concerning the City\u2019s offer to Worker of another position and her response to the offer. She did not work for the City after February 21, 1990. Dr. Diskant testified that Worker reached maximum medical improvement on March 26, 1990.\nWhile Worker was not working, the City paid her benefits for temporary total disability. The City also paid for treatment and consultation by a number of physicians. In August 1990 a neurologist to whom Worker had been ref erred, made a preliminary diagnosis of multiple sclerosis, based on an MRI of her brain. On November 21, 1990, the City filed with the Administration a Petition to Reduce Benefits, seeking a termination or reduction of temporary total disability benefits. The City continued to pay Worker full benefits for temporary total disability until the Administration filed a Recommended Resolution on January 15, 1991, recommending that Worker\u2019s benefits be reduced to thirty percent permanent partial disability. The City made the recommended partial disability payments up to the time of the hearing before the WCJ.\nWe now discuss the allocation of the burden of persuasion, whether the WCJ\u2019s ruling is affirmable, and whether we can consider evidence in the supplemental record on appeal.\nI. BURDEN OF PERSUASION\nThe City filed its petition pursuant to NMSA 1978, Section 52-5-5(A) (Repl.Pamp.1991), which permits \u201cany party\u201d to file a claim with the director of the Administration when a dispute arises under the Workers\u2019 Compensation Act (the Act). The Administration then attempts to resolve the dispute informally and issues a recommendation for resolution within sixty days after receipt of the claim. Section 52-5-5(C). If either party timely rejects the recommendation, the matter is assigned to a WCJ for hearing. Id. The first issue before us is whether the City bore the burden of persuading the WCJ that Worker\u2019s benefits should be terminated or reduced. We hold that the City did not bear that burden. The burden was on Worker to establish entitlement to benefits.\nThe legislature introduced the procedure provided by Section 52-5-5 in 1986, when it created the Administration and removed workers\u2019 compensation cases from the district courts. Under former law the only way to initiate a judicial determination of a worker\u2019s entitlement to benefits was for the worker to file a claim after the employer failed or refused to pay compensation. See NMSA 1978, \u00a7\u00a7 52-1-26, -31(A) (Orig.Pamp.). Once the district court had entered a judgment awarding benefits, either party could apply for a change in benefits. NMSA 1978, \u00a7 52-l-56(A) (Orig.Pamp.). In the initial judicial proceeding the worker had the burden of persuasion with respect to entitlement to benefits. See Aguilar v. Penasco Indep. Sch. Dist. No. 6, 100 N.M. 625, 628, 674 P.2d 515, 518 (1984). After the initial judgment the party seeking a change in benefits had the burden of persuasion with respect to the change. See Amos v. Gilbert W. Corp., 103 N.M. 631, 635-36, 711 P.2d 908, 912-13 (Ct.App.1985). Thus, an employer seeking reduction in benefits had the burden to establish that there had been a decrease in disability, whereas a worker seeking an increase in benefits had the burden of establishing an increase in disability. See id. These rules accord with the law in other jurisdictions. See 3 Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 80.33(a) (1989) (worker has burden of proving the claim), \u00a7 81.33(c) (burden is on movant who seeks to open the award).\nPrior to filing its petition the City had been paying Worker full benefits for temporary total disability. Although New Mexico has adopted what is apparently the minority rule that permits voluntary payment of benefits by the employer to be treated as competent evidence of liability, see Romero v. S.S. Kresge Co., 95 N.M. 484, 486, 623 P.2d 998, 1000 (Ct.App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981), overrruled on other grounds by Dupper v. Liberty Mutual Ins. Co., 105 N.M. 503, 734 P.2d 743 (1987); 2B Larson, supra, \u00a7 79.43, New Mexico has rejected the contention that voluntary payment by the employer shifts the burden of persuasion from the worker to the employer. See Romero, 95 N.M. at 486, 623 P.2d at 1000. In holding that the voluntary payment of compensation benefits does not create a presumption that the employer is liable, our Supreme Court wrote, \u201cTo impose the presumption would not only be contrary to the remedial nature of workmen\u2019s, compensation but would also discourage prompt payment of benefits which might be essential for the worker\u2019s survival.\u201d ' Wilson v. Richardson Ford Sales, 97 N.M. 226, 228, 638 P.2d 1071, 1073 (1981); accord 2B Larson, supra, \u00a7 79.43, at 15-426.112. In other words, it is against public policy to penalize an employer by shifting the burden of persuasion when the employer voluntarily takes action that benefits the worker.\nThe identical public policy considerations argue against shifting the burden of persuasion to the City in the circumstances of this case. Under settled law, Worker would have the burden of persuasion if she were the one to file a petition with the Administration. See Toynbee v. Mimbres Memorial Nursing Home, 114 N.M. 23, 27, 833 P.2d 1204, 1208 (Ct.App.1992); Sanchez v. Molycorp, Inc., 113 N.M. 375, 378, 826 P.2d 971, 974 (Ct.App.1992). Worker could not file a claim for disability benefits, however, so long as the City was paying full benefits. See NMSA 1978, \u00a7 52-5-18 (Repl.Pamp.1987); Armijo v. Co-Con Constr. Co., 92 N.M. 295, 296, 587 P.2d 442, 443 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978), overruled on other grounds by Raines v. W.A. Klinger & Sons, 107 N.M. 668, 763 P.2d 684 (1988), and by Maitlen v. Getty Oil Co., 105 N.M. 370, 733 P.2d 1 (Ct.App.1987). Thus, to induce Worker to file a claim the City would need to reduce the benefits it was paying. Although statutory sanctions against bad faith misconduct by an employer should discourage an employer from reducing payments unjustifiably, NMSA 1978, \u00a7 52-l-54(G) (Repl. Pamp.1987), the record in this ease would certainly have supported a finding of good faith if the City had reduced Worker\u2019s benefits on its own instead of first filing its petition with the Administration. By proceeding in that manner the City would have ensured that Worker bore the burden of persuasion. To impose the burden of persuasion on the City because it chose a procedure more beneficial to Worker would deter other employers from taking the same path. The public policy expressed in Wilson suggests that the law should not be interpreted to discourage employers from (1) paying full benefits and filing a petition under Section 52-5-5, rather than (2) reducing benefits to induce the worker to file a petition. The burden of persuasion therefore should not shift to an employer who chooses the first course.\nNothing in the changes to the Act since Wilson suggests legislative repudiation of the public policy expressed in that opinion. In 1987 the legislature added a declaration of purpose to the Act. The declaration includes the following:\nIt is the intent of the legislature in creating the worker\u2019s compensation division [] that the laws administered by it to provide a workers\u2019 benefit system be interpreted to assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to the provisions of the Workers\u2019 Compensation Act and the New Mexico Occupational Disease Disablement Law. It is the specific intent of the legislature that benefit claims cases be decided on their merits and that the common law rule of \u201cliberal construction\u201d based on the supposed \u201cremedial\u201d basis of workers\u2019 benefits legislation shall not apply in these cases. The workers' benefit system in New Mexico is based on a mutual renunciation of common law rights and defenses by employers and employees alike. Accordingly, the legislature hereby declares that the Workers\u2019 Compensation Act and the New Mexico Occupational Disease Disablement Law are not remedial in any sense and are not to be given a broad liberal construction in favor of the claimant or employee on the one hand, nor are the rights and interests of the employer to be favored over those of the employee on the other hand.\nNMSA 1978, \u00a7 52-5-1 (Repl.Pamp.1987). If anything, this declaration of purpose\u2014 particularly the instruction to interpret the Act even-handedly \u2014 reinforces the public policy expressed in Wilson. We conclude that in this action Worker bore the burden of persuasion to establish her entitlement to benefits.\nII. AFFIRMABILITY OF THE AWARD\nWorker\u2019s attorney argues vigorously and passionately that the WCJ\u2019s decision was a miscarriage of justice. Counsel recognizes, however, that this Court cannot judge the credibility of witnesses, reweigh the evidence, or make its own findings of fact. See Tollman v. ABF (Arkansas Best Freight), 108 N.M. 124, 126-30, 767 P.2d 363, 365-69 (Ct.App.), cert. denied, 107 N.M. 785, 109 N.M. 33, 781 P.2d 305 (1988). Our role is limited to deciding whether it was rational for the WCJ to determine that Worker had not satisfied her burden of persuasion in establishing that after March 25, 1990, she was disabled by her work-related accident. See Sosa v. Empire Roofing Co., 110 N.M. 614, 616, 798 P.2d 215, 217 (Ct.App.1990). By that standard we must affirm.\nFor almost all of Worker\u2019s medical complaints, there was expert testimony by physicians that the complaints were not caused by Worker\u2019s fall on the job on January 30, 1989. Several physicians testified that the fall did not cause or aggravate Worker\u2019s multiple sclerosis. Physicians testified that her headaches probably were the result of chronic sinusitis, not her fall at work. Although the first fall at home that injured Worker\u2019s finger originally was attributed to leg weakness caused by the injury to Worker\u2019s back in the January 1989 fall at work, after Worker was diagnosed as having multiple sclerosis several physicians testified that Worker\u2019s lower-back injury probably did not cause either fall at home. Other testimony may have supported contrary findings. But our task is not to determine whether the record would have supported a different result; it is only to determine whether the WCJ could properly reach the decision that was rendered. See Bowles v. Los Lunas Sch., 109 N.M. 100, 104, 781 P.2d 1178, 1182 (Ct.App.), cert. denied, 109 N.M. 131, 782 P.2d 884 (1989). The WCJ had no duty in this case to recite why he relied on some expert testimony rather than contrary testimony. See Empire W. Cos. v. Albuquerque Testing Lab., 110 N.M. 790, 794, 800 P.2d 725, 729 (1990) (findings required only on ultimate facts).\nIt appears, however, that the WCJ believed that Worker\u2019s accident of January 30, 1989, caused a \u201csmall central disc protrusion\u201d at L5-S1 in Worker\u2019s spine. The physicians sometimes referred to the protrusion as a \u201cherniation.\u201d Did the evidence before the WCJ compel a finding that Worker was disabled by the disc protrusion, or was it rational for the WCJ to find that Worker had not proved that she was disabled by her lower-back problem?\nThe disc injury was revealed by a CT scan taken on February 17, 1989. Despite that injury, Worker\u2019s treating physicians released her to work without restrictions for most of that year. On February 21, 1990, Dr. Diskant removed her from work on the ground that she could not \u201ccontinue working in a field type of job which requires a lot of driving.\u201d He testified that it was his understanding that her duties had changed. He said: \u201c[Worker] was complaining that she was not able to tolerate the degree of driving that was required of her. In light of the herniated disc, I thought that that complaint was plausible[.]\u201d Dr. Diskant\u2019s removal of Worker from her job was predicated on Worker\u2019s complaints of pain. The WCJ did not need to credit Dr. Diskant\u2019s determination of disability if there was reason to doubt Worker\u2019s complaints. See Nunez v. Smith\u2019s Management Corp., 108 N.M. 186, 189-90, 769 P.2d 99, 102-03 (Ct.App.1988) (even under uncontradicted-medical-evidence rule, which relates to causation rather than extent of disability, WCJ need not credit uncontradicted medical testimony based on a disputed version of facts).\nWorker\u2019s credibility was called into question throughout the proceedings. Her description of the January 30, 1989, accident differed substantially from that of another City employee who allegedly witnessed the accident. Various medical records indicate that she may have intentionally exaggerated her symptoms. For example, one doctor reported in the medical records:\nIt might be noted however that when the patient attempted to get up onto the table she was able to move her chin close to her chest, which exhibits a range of motion far in excess of what she had demonstrated when asked to perform range of motion maneuvers with the cervical spine.\nAlso, the WCJ could have viewed Worker\u2019s conduct in responding to the City\u2019s offer of a new position as indicating a desire to avoid working. This and other evidence in the record created a rational basis for the WCJ to doubt Worker\u2019s credibility. Another fact finder may have found Worker to be fully credible, but this Court cannot reverse the WCJ on that ground. See Tallman, 108 N.M. at 127, 767 P.2d at 366.\nThus, the WCJ could rationally disbelieve Worker\u2019s complaints of pain unless the pain would necessarily follow from the objective medical findings. In that regard, a neurologist who reviewed the February 1989 CT scan stated, \u201cLumbosacral spine films showed a slight disc bulge at L5-S1 which I do not think is significant.\u201d A second neurologist, Dr. Michael Freedman, spoke of a \u201csmall but probably insignificant disk herniation of the lumbar spine.\u201d An MRI taken on August 9, 1989, showed that the degree of herniation of the disc had diminished. There was no evidence of thecal or nerve root compression. Dr. Freedman testified that from the physical findings he could not determine whether the disc was causing pain. He said that normal daily activities would not be a problem for Worker. A Physical Capacities Evaluation performed by the work performance center at Presbyterian Hospital in April 1990 indicated no restriction on activities involving driving automotive equipment.\nAgain, although the record would support a finding in favor of Worker with respect to disability caused by her lower back injury, the WCJ could rationally decide that Worker had not satisfied her burden of establishing that the injury disabled her from performing her job. Therefore, we must affirm the WCJ\u2019s determination that Worker was not disabled after March 25, 1990.\nIII. SUPPLEMENTAL RECORD\nAfter Worker filed her notice of appeal she filed with the Administration an application to modify the disposition order pursuant to NMSA 1978, Section 52-5-9 (Repl.Pamp.1991). The WCJ denied the application. Worker did not appeal from the denial but moved this Court to allow a supplemental record on appeal that would include the pleadings relating to her application and the tape recordings of the hearing on the application. We granted the motion.\nWorker now requests us to consider in this appeal various evidence contained in the supplemental record. We deny the request. Our review of the order from which Worker appeals cannot be based on evidence that had not been presented to the WCJ at the time the order was issued. See SCRA 1986, 12-216(A) (Repl.1992) (question not preserved for appellate review if not invoked in lower tribunal); Strickland v. Roosevelt County Rural Elec. Coop., 99 N.M. 335, 344, 657 P.2d 1184, 1193 (Ct.App. 1982), cert. denied, 99 N.M. 358, 658 P.2d 433, cert. denied, 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390 (1983). Because Worker did not appeal from the WCJ\u2019s ruling on her application for modification, we need not decide whether the WCJ had jurisdiction to deny the application. See Archuleta v. New Mexico State Police, 108 N.M. 543, 548, 775 P.2d 745, 750 (Ct.App.), (noting authority concerning jurisdiction of trial court to hear motions pursuant to SCRA 1986, 1-060(B) during pendency of appeal), cert. denied, 108 N.M. 384, 772 P.2d 1307 (1989).\nIV. CONCLUSION\nFor the reasons stated above, we affirm the disposition order of the Administration.\nIT IS SO ORDERED.\nMINZNER, C.J., and APODACA, J., concur.\n. For several years the administering authority for the Act was the workers\u2019 compensation division of the labor department.", "type": "majority", "author": "HARTZ, Judge." } ], "attorneys": [ "David A. Archuleta, Albuquerque, for claimant-appellant.", "Richard J. Shane, Deborah S. Dungan, Padilla, Riley & Shane, P.A., Albuquerque, for respondent-appellee." ], "corrections": "", "head_matter": "853 P.2d 163\nIda GALLEGOS, Claimant-Appellant, v. CITY OF ALBUQUERQUE, a self-insured employer, Respondent-Appellee.\nNo. 13730.\nCourt of Appeals of New Mexico.\nApril 7, 1993.\nCertiorari Denied May 20, 1993.\nDavid A. Archuleta, Albuquerque, for claimant-appellant.\nRichard J. Shane, Deborah S. Dungan, Padilla, Riley & Shane, P.A., Albuquerque, for respondent-appellee." }, "file_name": "0461-01", "first_page_order": 501, "last_page_order": 506 }