{ "id": 827318, "name": "Ronald A. SMITH, Worker-Appellant, v. CUTLER REPAVING and CNA Insurance Co., Employer/Insurer-Appellees", "name_abbreviation": "Smith v. Cutler Repaving", "decision_date": "1999-01-11", "docket_number": "No. 19,013", "first_page": "725", "last_page": "729", "citations": [ { "type": "official", "cite": "126 N.M. 725" }, { "type": "parallel", "cite": "974 P.2d 1182" }, { "type": "parallel", "cite": "1999-NMCA-030" } ], "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": "104 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594915 ], "weight": 2, "pin_cites": [ { "page": "70" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0067-01" ] }, { "cite": "92 N.M. 504", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557236 ], "weight": 2, "pin_cites": [ { "page": "506" }, { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0504-01" ] }, { "cite": "122 N.M. 524", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322279 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0524-01" ] }, { "cite": "1996-NMSC-064", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 39" } ], "opinion_index": 0 }, { "cite": "121 N.M. 439", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566480 ], "weight": 4, "pin_cites": [ { "page": "441" }, { "page": "834", "parenthetical": "\"[A] doctor's opinion is only as good as the facts upon which he or she bases it.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0439-01" ] }, { "cite": "1996-NMCA-030", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "108 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592857 ], "weight": 5, "pin_cites": [ { "page": "100" }, { "page": "1334" }, { "page": "1334" }, { "page": "101" }, { "page": "1335" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0098-01" ] }, { "cite": "107 N.M. 278", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597157 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "282" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0278-01" ] }, { "cite": "111 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715074 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "552", "parenthetical": "quoting National Council on Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988)" }, { "page": "736", "parenthetical": "quoting National Council on Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988)" }, { "page": "553" }, { "page": "738", "parenthetical": "noting that while whole record review does not allow appellate court to reweigh evidence, it does afford court \"greater latitude to determine whether a finding of fact was reasonable based on the evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0550-01" ] }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 4, "pin_cites": [ { "page": "127" }, { "page": "366" }, { "page": "128" }, { "page": "367", "parenthetical": "\"Whole record review ... contemplate^] a canvass by the reviewing court of all the evidence bearing on a finding or decision, favorable and unfavorable, in order to determine if there is substantial evidence to support the result.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] } ], "analysis": { "cardinality": 720, "char_count": 14870, "ocr_confidence": 0.74, "pagerank": { "raw": 8.134857401414374e-08, "percentile": 0.46853503814315045 }, "sha256": "30c871ab46ca0acd6040a199b9da09e8267dd84cee2ded2cfff84f43908d1bb0", "simhash": "1:3c26439bdfba05d2", "word_count": 2307 }, "last_updated": "2023-07-14T18:24:14.526620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BOSSON and BUSTAMANTE, JJ., concur." ], "parties": [ "Ronald A. SMITH, Worker-Appellant, v. CUTLER REPAVING and CNA Insurance Co., Employer/Insurer-Appellees." ], "opinions": [ { "text": "OPINION\nARMIJO, Judge.\n{1} Ronald A. Smith (Worker), challenges an administrative determination that he has reached maximum medical improvement (MMI) for his primary physical and secondary mental injuries resulting from a work-related injury. Worker makes two arguments on appeal: (1) the MMI findings below are not supported by sufficient evidence; and (2) it was error to admit certain deposition testimony. For the reasons stated below, we affirm in part and reverse in part.\nFACTS AND PROCEEDINGS\n{2} In 1993, while working for Appellee, Cutler Repaving (Employer), Worker caught his right ankle and foot under a heavy asphalt roller machine. Following the injury, Worker underwent several amputations, leaving him with a short, above-the-knee stump. Worker has since undergone extensive treatment, including subsequent surgeries, in an attempt to adjust to a prosthetic limb. As of July 30, 1997, Worker had not yet adjusted to the prosthetic. At the hearing, Worker testified to: fluctuating weight induced by related stress; sores and other damage to his' leg resulting from attempts to use the prosthetic; and phantom pains and numbness in his good leg. His wife testified that the prosthetic quickly causes Worker to develop bloody blisters and that he has significant difficulty ambulating on the device. Worker has never adjusted to the use of his prosthetic limb.\n{3} As of the hearing, Dr. Edward J. Atler had been treating Worker regarding his leg and adjustment to the prosthetic device for four years. While Dr. Atler had previously stated that \u201cthings seem to have settled down\u201d and that \u201cit seem[ed] that this situation has stabilized now in terms of the stump,\u201d he testified that as of July 30, 1997, he believed Worker had not reached MMI in regards to his physical injury. He further estimated that Worker retained a twenty percent chance of further recovery.\n{4} The record also contains testimony from Dr. Brian P. Delahoussaye, a physician to whom Dr. Atler referred Worker for a determination of the extent of his physical impairment. At the time of his deposition, Dr. Delahoussaye had not seen Worker for approximately two years. However, Dr. Delahoussaye testified that when he examined Worker, on August 10, 1995, he \u201cwas under the impression\u201d that Dr. Atler had already determined that Worker had reached MMI in regards to his physical injury.\n{5} Worker has also experienced significant emotional problems resulting from his physical injuries. Since the accident, Worker has undergone psychological counseling and a regimen of anti-depressant medications, including Prozac, Paxil, and Serzone. In finding that Worker had reached MMI for his secondary mental impairment, the workers\u2019 compensation judge (WCJ) relied upon the report of Dr. Timothy S. Strongin. Specifically, the WCJ found compelling Dr. Strongin\u2019s opinion that Worker would reach MMI for his secondary mental impairment within six months of the resolution of litigation. This finding rests upon the WCJ\u2019s implied conclusion that Worker\u2019s continuing psychological dysfunction was caused not by his original physical injury, but by the litigation arising therefrom.\n{6} However, Dr. Strongin appears to have equivocated as to whether Worker had reached MMI in regards to his secondary mental impairment. For example, while he concluded his report by stating that \u201c[Worker] is found to be at maximum medical improvement for the period in which his case is adjudicated,\u201d he further opined that \u201c[Worker] will probably experience significant additional improvement within six months after his case is finally settled.\u201d Furthermore, Dr. Strongin noted that: Worker\u2019s prognosis \u201cis poor until his medical and legal situation is resolved\u201d; Worker\u2019s \u201congoing denial of loss is likely to inhibit psychotherapeutic progress\u201d; and future counseling ought \u201cto be problem-focused and specific, rather, than merely supportive.\u201d Finally, Dr. Strongin testified at his deposition that \u201c[a]t the time I saw him in September of 1996, his mental health condition appeared to be subject to change.\u201d\n{7} The record contains additional evidence from other examining mental health providers indicating that Worker\u2019s mental condition was not \u201cstatic and well stabilized.\u201d For example, on January 31,1997, Dr. Edgar W. Waybright, a psychiatrist who treated Worker for \u201csevere Post[-]traumatic Stress Disorder[,]\u201d \u201cMajor Depression\u201d and \u201cpossible Dementia,\u201d wrote Worker\u2019s attorney stating that Worker \u201chas not reached maximum medical improvement with regard to the mental/emotional disorders resulting from his work injury!.]\u201d Dr. Waybright further testified by affidavit that Worker had not reached psychological MMI as of April 1997. The record also contains a statement from Worker\u2019s treating psychiatrist, Dr. Michael D. Muldawer, indicating that Worker had not reached psychological MMI as of April 1997. Dr. Barry L. Irons, a psychiatrist who saw Worker during the summer of 1997, noted in August that while Worker still suffered from major depression, he was \u201c[bjenefitting from outpatient therapy.\u201d Finally, Dr. Thomas C. Thompson wrote to Worker\u2019s attorney in July 1997, to note that Worker \u201cis clearly majorly depressed\u201d and \u201cneeds considerable psychotherapeutic work in order to help him 1) accept the nature of the loss, which still has not occurred, and 2) begin to reorganize himself!.]\u201d\n{8} Upon this body of evidence, the WCJ found that Worker had reached MMI for both his primary physical and secondary mental impairments.\nSTANDARD OF REVIEW\n{9} In reviewing the WCJ\u2019s decision, we employ the whole record review. See Tollman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.App.1988). \u201cWe must find \u2018evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency.\u2019 \u201d Herman v. Miners\u2019 Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991) (quoting National Council on Compensation Ins. v. New Mexico State Corp. Comm\u2019n, 107 N.M. 278, 282, 756 P.2d 558, 562 (1988)); see also Herman, 111 N.M. at 553, 807 P.2d at 738 (noting that while whole record review does not allow appellate court to reweigh evidence, it does afford court \u201cgreater latitude to determine whether a finding of fact was reasonable based on the evidence\u201d); Tollman, 108 N.M. at 128, 767 P.2d at 367 (\u201cWhole record review ... contemplate^] a canvass by the reviewing court of all the evidence bearing on a finding or decision, favorable and unfavorable, in order to determine if there is substantial evidence to support the result.\u201d).\nMAXIMUM MEDICAL IMPROVEMENT\n{10} The central issue on appeal is whether the record contains sufficient evidence to support the WCJ\u2019s finding that Worker has reached MMI for his physical and secondary mental injuries. MMI is \u201cthe date after which further recovery from or lasting improvement to an injury can no longer be reasonably anticipated based upon reasonable medical probability as determined by a health care provider.\u201d NMSA 1978, \u00a7 52-1-24.1 (1990). Key to determining MMI is \u201cexpert medical testimony\u201d regarding whether the injured worker \u201cis more likely than not\u201d to recover further. Baca v. Bueno Foods, 108 N.M. 98, 100, 766 P.2d 1332, 1334 (Ct.App.1988). We address each MMI finding separately. Cf. Peterson v. Northern Home Care, 1996-NMCA-030, \u00b6 13, 121 N.M. 439, 912 P.2d 831 (finding that worker need not have current physical impairment to have a secondary mental impairment).\n(a) MMI for Worker\u2019s Primary Physical Impairment\n{11} The only record evidence supporting Worker\u2019s contention of future improvement in regards to his physical injuries is Dr. Atler\u2019s deposition testimony. At deposition, Dr. Atler guardedly estimated that Worker had a twenty percent chance of future physical improvement. The only other testifying expert on this matter, Dr. Delahoussaye, believed Worker had reached his physical MMI as of 1995. The record further indicates that Worker\u2019s physical condition had not appreciably changed between Dr. Delahoussaye\u2019s examination in 1995 and Dr. Atler\u2019s last examination of the Worker on July 30, 1997. Accordingly, it was reasonable for the WCJ to conclude that Worker was not \u201cmore likely than not\u201d to recover further. Baca, 108 N.M. at 100, 766 P.2d at 1334; cf. Madrid v. St. Joseph Hosp., 1996-NMSC-064, \u00b6 39, 122 N.M. 524, 928 P.2d 250 (noting that stability in worker\u2019s condition for several years supported reasonable conclusion that he had met physical MMI). We therefore hold that substantial evidence supports the WCJ\u2019s determination that Worker achieved his physical MMI on September 4, 1996.\n{12} In so holding, we recognize that Worker continues to suffer from the physical repercussions of his traumatic injury, thus requiring further medical treatment. However, whether a worker has reached MMI turns on proof of a reasonable medical probability of future recovery and lasting improvement. See Baca, 108 N.M. at 101, 766 P.2d at 1335. Accordingly, the fact that Worker will need future medical-care for his continuing disability is not inconsistent with our conclusion. See Lane v. Levi Strauss & Co., 92 N.M. 504, 506, 590 P.2d 652, 654 (Ct.App.1979) (\u201cThe need for further medical treatment is not incompatible with the status of permanent disability.\u201d).\n(b) MMI for Worker\u2019s Secondary Mental Impairment\n{13} The primary basis for the WCJ\u2019s finding that Worker had reached MMI for his secondary mental impairment was Dr. Strongin\u2019s statement that Worker would reach MMI within six months of the conclusion of this litigation. For several reasons, we find the WCJ\u2019s reliance on Dr. Strongin\u2019s report unreasonable and reverse his determination.\n{14} In relying on Dr. Strongin\u2019s report, the WCJ disregarded the report\u2019s internal inconsistencies. For example, while the doctor indeed concluded that \u201c'[Worker] is found to be at maximum medical improvement for the period in which his case is adjudicated,\u201d he states in the next sentence that \u201c[Worker] will probably experience significant additional improvement within six months after his case is finally settled.\u201d Achievement of MMI is directly incompatible with such expert testimony that further improvement is a \u201creasonable medical probability.\u201d Section 52-1-24.1.\n{15} Dr. Strongin\u2019s report also records his observations that Worker\u2019s denial of his loss \u201cis likely to inhibit psychotherapeutic progress\u201d and that future counseling should be aimed at resolving specific problems. Such statements are not consistent with a finding that further recovery is improbable. Finally, at his deposition, Dr. Strongin testified that at the time of -the examination, Worker\u2019s \u201cmental health condition appeared to be subject to change.\u201d Read as a whole, Dr, Strongin\u2019s report and testimony indicate a probability of future psychological improvement, not a static and stabilized emotional state.\n{16} Such a reading of Dr. Strongin\u2019s report and deposition testimony is consistent with substantial additional evidence in the record that Worker had not reached MMI for his secondary mental impairment. For example, Dr. Irons noted that Worker was \u201c[b]enefitting from outpatient therapy,\u201d and Dr. Thompson wrote that Worker, in his opinion, \u201cneeds considerable psychotherapeutic work[.]\u201d Upon our review of this evidence, we cannot affirm as reasonable the WCJ\u2019s finding that \u201cWorker has reached a certain amount of stability\u201d in regards to his secondary mental impairment; such a finding is not supported by substantial evidence.\n{17} We also note that the WCJ\u2019s psychological MMI finding appears, at least in part, to be based on a lack of causation. In his order on Worker\u2019s motion to -reconsider, the WCJ stated that \u201cWorker\u2019s anxieties involve working with attorneys and the court system regarding his legal cases and do not arise out of the trauma causing the loss of his leg.\u201d In so concluding, the WCJ disregarded the virtually unanimous expert testimony on the issue. See Hernandez v. Mead Foods, Inc., 104 N.M. 67, 70, 716 P.2d 645, 648 (Ct.App.1986) (noting that uncontroverted expert medical testimony regarding causation is binding on the court).\n{18} The only doubt raised regarding causation is Dr. Strongin\u2019s report. However, this report contains the doctor\u2019s observation that Worker\u2019s prognosis was \u201cpoor\u201d until both his medical and legal difficulties are resolved. Furthermore, Dr. Strongin testified that he made no effort to assess Worker\u2019s emotional state in regards to his difficulty adapting to the loss of his leg or the use of a prosthetic limb. To the extent his testimony can be construed as opining that Worker\u2019s present emotional state results from or is related to his physical injury, he is without foundation. Cf. Peterson, 121 N.M. at 441, 912 P.2d at 834 (\u201c[A] doctor\u2019s opinion is only as good as the facts upon which he or she bases it.\u201d). The uncontroverted medical evidence on this point, therefore, indicates that Worker\u2019s injuries stemming from the original accident include his continuing psychological dysfunction.\nDR. DELAHOUSSAYE\u2019S TESTIMONY\n{19} Worker also argues the WCJ should have excluded Dr. Delahoussaye\u2019s testimony regarding Worker\u2019s physical MMI. We find this argument to be without merit. Worker argues that Dr. Delahoussaye was not his \u201ctreating physician\u201d within the meaning of the Workers\u2019 Compensation Act. See NMSA 1978, \u00a7 52-1-51(0 (1990) (providing that \u201c[o]nly a health care provider who has treated the worker\u201d can provide expert medical testimony). Dr. Delahoussaye is a \u201chealth care provider,\u201d as defined by the Act. See NMSA 1978, \u00a7 52-4-KA) (1993) (defining \u201chealth care provider\u201d). Moreover, he examined Worker at Dr. Atler\u2019s request for the express purpose of determining the degree of Worker\u2019s physical impairment. Accordingly, Dr. Delahoussaye was, for purposes of this statute, Worker\u2019s treating physician. See 11 NMAC 4.4.11.4.1 (1996) (\u201cA referral by an authorized HCP [health care provider] to another HCP shall be deemed a continuation of the selection of the referring HCP.\u201d). The WCJ therefore committed no error in admitting his testimony.\nCONCLUSION\n{20} For the reasons given above, we affirm the WCJ\u2019s determination that Worker reached physical MMI on September 4, 1996, but reverse the WCJ\u2019s finding that Worker reached psychological MMI on that date. This matter is therefore remanded for proceedings consistent with this opinion.\n{21} IT IS SO ORDERED.\nBOSSON and BUSTAMANTE, JJ., concur.", "type": "majority", "author": "ARMIJO, Judge." } ], "attorneys": [ "Donald D. Vigil, Donald D. Vigil, P.C., Adbuquerque, for Appellant.", "Kimberly A. Syra, Hatch, Allen & Shepherd, P.A., Albuquerque, for Appellees." ], "corrections": "", "head_matter": "1999-NMCA-030\n974 P.2d 1182\nRonald A. SMITH, Worker-Appellant, v. CUTLER REPAVING and CNA Insurance Co., Employer/Insurer-Appellees.\nNo. 19,013.\nCourt of Appeals of New Mexico.\nJan. 11, 1999.\nCertiorari Denied, No. 25,581, Feb. 17, 1999.\nDonald D. Vigil, Donald D. Vigil, P.C., Adbuquerque, for Appellant.\nKimberly A. Syra, Hatch, Allen & Shepherd, P.A., Albuquerque, for Appellees." }, "file_name": "0725-01", "first_page_order": 763, "last_page_order": 767 }