{ "id": 1558963, "name": "Olga JURADO, Worker-Appellee, v. LEVI STRAUSS & COMPANY, A Self Insured, Employer-Appellant", "name_abbreviation": "Jurado v. Levi Strauss & Co.", "decision_date": "1995-10-12", "docket_number": "No. 15936", "first_page": "801", "last_page": "806", "citations": [ { "type": "official", "cite": "120 N.M. 801" }, { "type": "parallel", "cite": "907 P.2d 205" } ], "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": "765 P.2d 758", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "107 N.M. 785", "category": "reporters:state", "reporter": "N.M.", "year": 1988, "opinion_index": 0 }, { "cite": "107 N.M. 788", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597180 ], "weight": 2, "pin_cites": [ { "page": "794" }, { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0788-01" ] }, { "cite": "113 N.M. 721", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723267 ], "weight": 2, "pin_cites": [ { "page": "727" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0721-01" ] }, { "cite": "882 P.2d 1046", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"Rule 92.4.3E only addresses the procedures for admitting medical records.\"" } ], "opinion_index": 0 }, { "cite": "118 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "year": 1994, "pin_cites": [ { "parenthetical": "\"Rule 92.4.3E only addresses the procedures for admitting medical records.\"" } ], "opinion_index": 0 }, { "cite": "118 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563492 ], "weight": 4, "pin_cites": [ { "page": "684" }, { "page": "840" }, { "page": "685" }, { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0682-01" ] }, { "cite": "879 P.2d 91", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1994, "opinion_index": 0 }, { "cite": "118 N.M. 90", "category": "reporters:state", "reporter": "N.M.", "year": 1994, "opinion_index": 0 }, { "cite": "118 N.M. 35", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563630 ], "weight": 5, "pin_cites": [ { "page": "356" }, { "page": "37" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0035-01" ] }, { "cite": "118 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563551 ], "weight": 2, "pin_cites": [ { "page": "454" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0449-01" ] }, { "cite": "98 N.M. 759", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582513 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "760-61" }, { "page": "1211-12" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0759-01" ] } ], "analysis": { "cardinality": 774, "char_count": 17936, "ocr_confidence": 0.706, "pagerank": { "raw": 1.691917207093702e-07, "percentile": 0.6993535144326948 }, "sha256": "50e2250ccf4b40dc9695e5fe71f71241f0b456f46f02bf14ae2c59b00bef0598", "simhash": "1:1f7eef4a86a006f0", "word_count": 2868 }, "last_updated": "2023-07-14T17:50:53.788074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PICKARD and BUSTAMANTE, JJ., concur." ], "parties": [ "Olga JURADO, Worker-Appellee, v. LEVI STRAUSS & COMPANY, A Self Insured, Employer-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n1. This case arises out of a claim for benefits under the Workers\u2019 Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (Repl. Pamp.1991) (effective January 1, 1991) (the Act). The principal issue is the admissibility of the written impairment report of Dr. Guy R. Fogel, who neither treated Worker nor provided an independent medical examination (IME). See \u00a7\u00a7 52-1-49, -51(C). For the reasons discussed below, we reverse the Workers\u2019 Compensation Judge's (WCJ) denial of Employer\u2019s motion in limine with regard to Dr. Fogel\u2019s report and remand this case to the WCJ for new findings and conclusions pertaining to the remaining issues.\nFacts and Proceeding Summary\n2. Worker suffered an accidental injury while sewing jeans at the \u201chem leg\u201d station at Employer\u2019s plant in Roswell, New Mexico, on December 11,1991. Worker\u2019s first report of accident states that her \u201cbilateral hands and wrists\u201d were injured due to \u201crepetitive work.\u201d Worker also described pain in her neck. The primary diagnosis by Worker\u2019s initial treating physicians, Drs. Veitch and Lehman, was bilateral carpal tunnel syndrome. Worker ceased work with Employer on March 5, 1992, and has not returned to work. She received carpal tunnel release surgery on her right and left wrists in March 1992 and June 1992 respectively. Dr. Colocho, who performed the surgery in June 1992, found Worker to be at maximum medical improvement (MMI) on October 9, 1992, and noted that Worker\u2019s multiple symptoms were beyond his comprehension and inconsistent with the physical rehabilitation reports. He released Worker from regular treatment as of October 9, 1992.\n3. On December 3,1992, Dr. Bernstein, a physician selected by both parties, performed an IME on Worker. In Dr. Bernstein\u2019s opinion, Worker\u2019s hand, wrist, neck, and shoulder conditions were causally related to her December 11, 1991 accident. He also determined that Worker had not yet reached MMI. Dr. Bernstein did not designate any impairment ratings.\n4. Dr. Allegretto, a general orthopedist, treated Worker in 1993 for the purpose of addressing all of her medical conditions. He determined that Worker had a \u201csubstantial amount of nonmeasurable complaints,\u201d and he thought that \u201cher psychological overlay exaggerate^] this.\u201d On May 14, 1993, Dr. Allegretto determined that Worker had reached MMI, assigned a 5% impairment rating to each upper extremity, which translates to a 6% impairment rating to the whole person, and released Worker from his care. Dr. Allegretto also determined that \u201c[t]he neck complaints and trigger points [did] not correspond to peripheral or spinal nerve root areas, and therefore, [could] not be assigned an impairment rating.\u201d Worker complained to Dr. Allegretto of headaches, which the doctor stated were not in his area of expertise.\n5. On September 17, 1993, Dr. Jakins, a general practitioner, concluded that Worker had reached MMI. He also indicated that he had no \u201cobjective explanation for her significant symptoms.\u201d In his deposition testimony, Dr. Jakins stated that he agreed with Dr. Allegretto\u2019s assessment that Worker did not show \u201cmany signs to warrant\u201d a neck impairment. Dr. Jakins also stated: \u201cMy feeling on this woman is that she has become her disease.\u201d\n6. On December 30, 1993, in response to Worker\u2019s attorney\u2019s request to arrange for another IME, Dr. Bernstein wrote to Worker\u2019s attorney:\nI saw Ms. Jurado for a one time meeting in December, 1992. I have not seen her since that time. I am at present no longer doing IME\u2019s[.] My associate at the time, Dr. Guy Fogel, was doing IME\u2019s and he has moved to Lubbock, Texas. If he is still doing IME\u2019s he may be willing to see her. I am not sure who else is doing IME\u2019s in Albuquerque.\n7. On January 18, 1994, Dr. Fogel examined Worker for \u201can impairment rating of the neck.\u201d Dr. Fogel\u2019s written report states that Worker was referred to him by her attorney for that specific purpose. It makes no mention of Dr. Bernstein or a referral by Dr. Bernstein. Dr. Fogel examined Worker after the attorneys and the WCJ agreed that the issue of whether Worker was entitled to an impairment rating for the neck and shoulders, and thus entitled to permanent partial disability benefits rather than scheduled injury benefits, was a disputed medical issue and the crucial focus of the dispute between the parties. Dr. Fogel\u2019s report is accompanied by an affidavit of records custodian which is signed and acknowledged in accordance with Workers\u2019 Compensation Administration (WCA) Rule of Evidence 92.4.3E (Oct. 1992) (WCA Rule 92.4.3E). In his report, Dr. Fogel assigned a 5% permanent partial impairment rating to the body as a whole for Worker\u2019s neck and shoulder condition.\n8. Prior to trial, Employer filed a motion in limine to exclude Dr. Fogel\u2019s written impairment rating report. Employer argued that Dr. Fogel\u2019s written report was inadmissible testimony within the meaning of Section 52-l-51(C) and the case law interpreting that section because it was neither testimony of an authorized health care provider under Section 52-1-49, nor testimony of an independent medical examiner agreed to by the parties or specified by the WCJ upon petition, as required under Section 52-l-51(A).\n9. After a hearing, the WCJ denied Employer\u2019s motion in limine and allowed Dr. Fogel\u2019s written report to be admitted as evidence. During the hearing, the WCJ ruled in favor of admitting the report because (1) the report complied with the formal requirements of WCA Rule 92.4.3E, and, (2) as it was in writing, it did not constitute \u201ctestimony\u201d to which the restrictions of Section 52-1-51(C) apply. In the findings and conclusions, however, the WCJ found that Dr. Bernstein had referred Worker to Dr. Fogel. The WCJ then concluded that Dr. Fogel\u2019s impairment evaluation report \u201cdid not constitute ongoing medical care and attention [or] an independent medical exam for diagnosis and treatment, but [was] undertaken to determine impairment ratings needed to calculate disability pursuant to the statutory formula.\u201d\n10. In awarding permanent partial disability benefits to Worker under Section 52-1-42, the WCJ arrived at a 14% permanent partial disability rating by adding 3% for Worker\u2019s specific vocational preparation to the sum of the impairment ratings determined by Drs. Allegretto and Fogel (6% whole-body impairment due to Worker\u2019s injury to the hands and wrists and 5% whole-body impairment due to Worker\u2019s neck and shoulder condition). Worker\u2019s attorney was awarded attorney fees, in part due to his success in achieving permanent partial disability benefits rather than scheduled injury benefits for Worker. Worker was also awarded her costs for obtaining Dr. Fogel\u2019s impairment evaluation report on her neck and shoulders.\nAdmissibility of Dr. Fogel\u2019s Impairment Evaluation Report\n11. For Worker to receive permanent partial disability benefits under Section 52-1-42, rather than scheduled injury benefits under Section 52-1-43, Worker must show that (1) she is totally disabled or (2) she has suffered a separate and distinct impairment to a nonscheduled body part. See Hise Constr. v. Candelaria, 98 N.M. 759, 760-61, 652 P.2d 1210, 1211-12 (1982); Gomez v. Bernalillo County Clerk\u2019s Office, 118 N.M. 449, 454, 882 P.2d 40, 45 (Ct.App.1994).\n12. Worker did not argue below or on appeal that she is totally disabled. Instead, the pivotal medical issue in dispute was whether Worker was entitled to a neck and shoulder impairment, thus entitling her to permanent partial disability rather than scheduled injury benefits. Employer had paid Worker temporary total disability benefits up to May 13, 1993, and had paid her medical expenses. As of May 14, 1993, Employer began paying scheduled injury benefits.\n13. Worker makes two arguments that she has established a separate and distinct impairment to a nonscheduled body part. We address them in reverse order. Worker relies on Lucero v. Smith\u2019s Food & Drug Centers, Inc., 118 N.M. 35, 878 P.2d 353 (Ct.App.), cert. denied, 118 N.M. 90, 879 P.2d 91 (1994), and contends that an impairment rating for the purpose of determining permanent partial disability benefits can be inferred from extrinsic medical evidence. We disagree. Lucero held that a claimant need not establish an impairment rating (i.e., loss of use expressed as a percentage) based on American Medical Association guides and publications to recover benefits for an injury to a specific scheduled member pursuant to the scheduled injury section. Id. at 38, 878 P.2d at 356. However, Lucero left untouched the requirement that a worker alleging permanent partial disability must establish an impairment rating for any separate and distinct nonscheduled body part(s) before being entitled to permanent partial disability benefits. See \u00a7 52-l-42(A), \u00a7 52-1-26(C) (setting out guidelines), \u00a7 52-l-24(A) (defining impairment based upon the American Medical Association guide); Lucero, 118 N.M. at 37, 878 P.2d at 355.\n14. Worker\u2019s principal position relies on Dr. Fogel\u2019s written report as evidence that Worker suffered a separate and distinct impairment to a nonscheduled body part. Employer argues that the WCJ erred in allowing Dr. Fogel\u2019s report to be admitted over Employer\u2019s motion in limine because the written report constitutes testimony of neither a health care provider who treated Worker pursuant to Section 52-1-49, nor a health care provider conducting an IME pursuant to Section 52-1-51. We agree with Employer.\n15. Section 52-l-51(A) reads in pertinent part:\nA. In the event of a dispute concerning any medical issue, if 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 independent medical examination.\n16. Section 52-1-51(0 states:\nC. Only a health care provider who has treated the worker pursuant to Section 52-1-49 NMSA 1978 or the health care provider providing the independent medical examination pursuant to this section may offer testimony at any workers\u2019 compensation hearing concerning the particular injury in question.\n17. When a medical issue is in dispute, Section 52-l-51(A) provides for resolution through the use of an independent medical examiner. The statute also provides two methods for determining who the independent medical examiner is to be: the parties may agree to the use of a specific independent medical examiner, or either party may petition the WCJ for permission to have the worker undergo an IME.\n18. The parties agreed that Worker could undergo an IME by Dr. Bernstein. While Dr. Bernstein\u2019s IME report establishes the causal connection between Worker\u2019s complaints regarding her hands, shoulder, and neck and her job duties with Employer, Dr. Bernstein concluded that Worker had not reached MMI as of December 3,1992, and he did not establish any impairment ratings for Worker. Worker\u2019s designated health care provider in 1993, Dr. Allegretto, determined that Worker had reached MMI on May 14, 1993, and gave her impairment ratings for both of her wrists. Worker\u2019s subsequent health care provider performing medical maintenance, Dr. Jakins, stated that the impairment rating Dr. Allegretto assigned to Worker was a \u201cfair decision\u201d and that Worker did not show \u201cmany signs to warrant\u201d a neck impairment.\n19. Worker does not dispute that Employer did not agree to allow Worker to undergo another IME with Dr. Fogel and that Employer did not know until after the fact that Worker visited Dr. Fogel. When, as here, the parties cannot agree, Section 52-1-51(A) specifically provides for either party to petition the WCJ for permission to undergo an IME. Section 52-l-51(A) does not allow the worker to make a unilateral decision as to which doctor to see for an IME.\n20. Even if Dr. Bernstein\u2019s December 1993 letter listing names of possible physicians could be characterized as a \u201creferral\u201d from Dr. Bernstein, as the WCJ determined, or as a continuation, albeit two years later, of Dr. Bernstein\u2019s IME, as argued by Worker, we believe that Section 52-l-51(A) does not provide for such a referral or continuation without an agreement of the parties or by the WCJ upon petition by one of the parties. Since the parties did not utilize either of these methods, we believe that Dr. Fogel cannot be considered an independent medical examiner pursuant to Section 52-l-51(A). Nor can Dr. Fogel be considered to be Worker\u2019s health care provider treating Worker pursuant to Section 52-1-19. Dr. Fogel was retained unilaterally by Worker\u2019s attorney for a one-time visit for the purpose of providing an impairment rating for Worker\u2019s neck and shoulder condition.\n21. Dr. Fogel\u2019s written report, therefore, is not admissible unless it is not considered \u201ctestimony.\u201d At the hearing on the motion in limine, the WCJ determined that Section 52-1-51(0 did not apply to Dr. Fogel\u2019s written report because such written report did not constitute testimony. The WCJ relied on WCA Rule 92.4.3E.\n22. We agree with Employer, however, that WCA Rule 92.4.3E merely provides a means by which medical records can be admitted into evidence in light of the WCA\u2019s prohibition against five physician testimony. See Lopez v. City of Albuquerque, 118 N.M. 682, 684, 884 P.2d 838, 840 (Ct.App.), cert. denied, 118 N.M. 533, 882 P.2d 1046 (1994) (\u201cRule 92.4.3E only addresses the procedures for admitting medical records.\u201d). This rule does not stand for the proposition that the medical opinions of a health care provider prepared in the form of a written report do not constitute testimony under Section 52-1-51(C). See Lopez, 118 N.M. at 685, 884 P.2d at 841 (\u201cThe VA [Veterans Administration] Center was not a health care provider authorized under Section 52-1-49, nor was it a health care provider conducting an independent examination of [w]orker at the order of the workers\u2019 compensation judge; consequently, it was not one of the only two types of health care providers which may provide testimony at compensation hearings.\u201d); City of Albuquerque v. Sanchez, 113 N.M. 721, 727, 832 P.2d 412, 418 (Ct.App.1992) (\u201c[WCA] director has authority to adopt reasonable rules and regulations, and, if not inconsistent with the law, the rules and regulations are binding on the administration of the Workers\u2019 Compensation Act.\u201d (citing NMSA 1978, \u00a7 52-5-4(A) (Repl.Pamp.1991))).\n23. In Lopez, this Court affirmed the WCJ\u2019s refusal to allow the VA Center\u2019s records into evidence. We did not specifically state in Lopez that the VA Center\u2019s written records were \u201ctestimony\u201d within the meaning of Section 52-l-51(C). Our holding that the WCJ was correct in refusing to allow those records into evidence presupposes that those records did constitute testimony, and that the relevant determination was whether those records constituted testimony of a health care provider under Section 52-1-49 or testimony of an independent medical examiner agreed to by the parties or selected by the WCJ upon petition.\n24. Similarly, Dr. Fogel\u2019s impairment evaluation is testimony, but is neither the testimony of a health care provider under Section 52-1-49, nor the testimony of an independent medical examiner as provided by Section 52-l-51(A). The fact that it was \u201cundertaken to determine impairment ratings needed to calculate disability pursuant to the statutory formula\u201d does not mean that it is admissible. The Act does not authorize such an evaluation except in connection with ongoing care from authorized treating health care providers, Section 52-1-49, or IMEs in situations where medical issues are in dispute. Section 52-1-51. Dr. Fogel\u2019s impairment evaluation report is inadmissible testimony within the meaning of Section 52-1-51(C).\n25. Additionally, Worker argues that Employer was not prejudiced by Dr. Bernstein\u2019s \u201creferral\u201d to Dr. Fogel because Employer had ample time to arrange for another IME prior to the trial of the case on October 6, 1994. She states that Employer chose to ignore the opportunity to have its own rating obtained and, instead, Employer objected to Dr. Fogel\u2019s impairment rating. However, Worker had the burden of establishing a separate and distinct impairment to a nonseheduled body part through compliance with the Act. She does not satisfy this burden by pointing out actions Employer could have taken. Worker also argues that Employer \u201cabnegated its responsibility to the worker in failing to provide a qualified physician to determine whether there was an impairment.\u201d Worker did not argue to the WCJ that Employer did not comply with Section 52-l-49(A) by failing to provide timely and necessary health care services. We will not hear the issue unless it was preserved for appeal. Cisneros v. Molycorp, Inc., 107 N.M. 788, 794, 765 P.2d 761, 767 (Ct.App.), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988).\n26. We reverse the WCJ\u2019s denial of Employer\u2019s motion in limine.\nRemaining Issues\n27. After the WCJ denied Employer\u2019s motion in limine and admitted Dr. Fogel\u2019s written report, he also decided that: (1) Worker reached MMI on September 17, 1993; and (2) Worker was entitled to (a) permanent partial disability benefits rather than scheduled injury benefits, (b) attorney fees, and (c) costs relating to Dr. Fogel\u2019s impairment evaluation. Since we hold that Dr. Fogel\u2019s written report should have been excluded from evidence, we remand the case to the WCJ for findings and conclusions with regard to these remaining issues in light of such exclusion. The WCJ shall also resolve Employer\u2019s issue concerning the award of $50 in costs.\n28. IT IS SO ORDERED.\nPICKARD and BUSTAMANTE, JJ., concur.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "James G. Chakeres, Albuquerque, for Worker-Appellee.", "Bryan D. Evans, Atwood, Malone, Mann & Turner, P.A., Roswell, for Employer-Appellant." ], "corrections": "", "head_matter": "907 P.2d 205\nOlga JURADO, Worker-Appellee, v. LEVI STRAUSS & COMPANY, A Self Insured, Employer-Appellant.\nNo. 15936.\nCourt of Appeals of New Mexico.\nOct 12, 1995.\nCertiorari Denied Nov. 21, 1995.\nJames G. Chakeres, Albuquerque, for Worker-Appellee.\nBryan D. Evans, Atwood, Malone, Mann & Turner, P.A., Roswell, for Employer-Appellant." }, "file_name": "0801-01", "first_page_order": 839, "last_page_order": 844 }