{ "id": 4246122, "name": "Judy CHAVEZ, Worker-Appellee, v. CITY OF ALBUQUERQUE and Risk Management Division, Employer/Insurer-Appellants", "name_abbreviation": "Chavez v. City of Albuquerque", "decision_date": "2009-12-21", "docket_number": "No. 29,133", "first_page": "741", "last_page": "746", "citations": [ { "type": "official", "cite": "147 N.M. 741" }, { "type": "parallel", "cite": "2010-NMCA-022" }, { "type": "parallel", "cite": "228 P.3d 525" } ], "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": "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": "2001-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183113 ], "weight": 4, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0272-01" ] }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 3, "pin_cites": [ { "page": "126" }, { "page": "365" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "1998-NMCA-175", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827399 ], "weight": 19, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 7" }, { "page": "\u00b6 2" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0335-01" ] } ], "analysis": { "cardinality": 798, "char_count": 20020, "ocr_confidence": 0.681, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1411929807490707 }, "sha256": "9033204c9da2cb8c696d903e3b134b0cbc4e8f1d5aca3cc9a73a890c9ed4b03c", "simhash": "1:642ed5007c6e76ee", "word_count": 3311 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY, Chief Judge, and LINDA M. VANZI, Judge." ], "parties": [ "Judy CHAVEZ, Worker-Appellee, v. CITY OF ALBUQUERQUE and Risk Management Division, Employer/Insurer-Appellants." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} The City of Albuquerque (Employer) appeals from the Workers\u2019 Compensation Judge\u2019s (WCJ\u2019s) decision favoring Judy Chavez\u2019s (Worker\u2019s) choice of a health care provider over Employer\u2019s objection. We reverse.\nBACKGROUND\n{2} After Worker\u2019s injury in February 2005, Employer made the initial choice of a provider and sent Worker to Employer\u2019s Employee Health Center where Worker was seen by a physician\u2019s assistant, by Dr. William Wellborn, and by an occupational therapist. In April 2006, Worker made her own selection of a health care provider, which was Dr. Ernesto Garza. While under Dr. Garza\u2019s care, Worker also saw her primary care doctor, and also saw Drs. Atler, Gutierrez, Tier-nan (Dr. Garza\u2019s partner), and Whalen, as well as other doctors for varying medical problems. At some point, Worker appears to have requested that her care be changed from Dr. Garza to Dr. Whalen. According to Employer, Worker switched from Dr. Garza to Dr. Whalen. Employer did not object to Worker seeing any doctor Worker had seen.\n{3} Dr. Garza died in 2007 and Worker was referred by her attorney or otherwise chose to see Dr. John Henry Sloan. Employer did not object to this selection. No formal filing was made with the Workers\u2019 Compensation Administration (WCA) in connection with the change to Dr. Sloan. The change to Dr. Sloan was done with the cooperation of an adjuster and thus by agreement. Some seventeen months later, in November 2008, Worker notified Employer that she wanted to change her provider to Dr. Carlos Esparza. Employer did not agree, and on November 12, 2008, Worker filed a request to change provider with the WCA. That request, signed only by Worker\u2019s legal counsel, explained that Dr. Sloan\u2019s medical care was inadequate and unreasonable. On November 12, 2008, the WCJ scheduled Worker\u2019s request and Employer\u2019s objection for a thirty-minute hearing on November 19, 2008. After service and entry of appearance, Employer formally objected on November 20, 2008.\n{4} On November 20, 2008, the WCJ reset the hearing to occur on November 21, 2008, and again allotted thirty minutes for the hearing. During the hearing on that date, the WCJ advised the parties on three occasions that time was limited. The WCJ ended the hearing at approximately the thirty-minute scheduled time. No one testified at the hearing. The only evidence offered and admitted consisted of three exhibits offered by Employer, which were a history and physical by Dr. Garza, a progress note by Dr. Garza, and a history and physical by Dr. Sloan. After listening to counsel, and close to the thirty-minute hearing deadline, the WCJ stated that he did not have time to take testimony, and he asked the parties if they wanted an evidentiary hearing scheduled, but neither party requested a further hearing. Worker\u2019s counsel made an offer of proof, stating that Worker would testify that the treatment she was getting from Dr. Sloan was not proper and that the doctor was not addressing what she perceived to be her needs, while at the same time stating that he had no expert testimony saying that Dr. Sloan\u2019s care was unreasonable. Worker\u2019s counsel further stated that what the parties had was a case that needed closure. Employer\u2019s counsel stated that Employer could not add anything given the time allotted for the hearing.\n{5} At the hearing\u2019s end, Worker\u2019s counsel explained that Worker was in control of her health care, and just as a doctor can refer a patient to another doctor, Worker\u2019s choice of a provider was simply a continuation of Worker\u2019s right to control her care. This drew a response from Employer\u2019s counsel that control did not, as explained in Chavez v. Intel Corporation, 1998-NMCA-175, 126 N.M. 335, 968 P.2d 1198, allow a worker who makes the last choice and pick of a provider to thereafter keep on choosing and picking providers. The WCJ took the matter under advisement and later entered an order with several findings of fact. Among the findings were the following:\n6. No party invoked the jurisdiction of the [WCA] to resolve [the] status of Worker\u2019s right of second selection after Dr. Garza\u2019s demise; Dr. John Henry Sloan\u2019s care was not a referral from Dr. Garza.\n7. The parties essentially \u201cagreed\u201d\u2014 whether explicitly or implicitly, by filing an objection thereto \u2014 that Worker could be seen by various doctors, including Dr. Sloan, Dr. Tiernan, and others; however, no formal written agreement was submitted into evidence characterizing any such doctor as a permanent replacement.\n8. Worker claims that Dr. Sloan is not providing adequate medical care to her because he is disorganized and unfocused in his treatment; also Dr. Sloan has his physician\u2019s assistant or other inexperienced doctors in his office see Worker, but Dr. Sloan no long[er] sees ... Worker.\n9. Worker claims that, despite returning to work, she continues to have debilitating and almost continuous pain that is wearing her down.\n10. Without addressing the merits of Worker\u2019s claims against Dr. Sloan, in light of Dr. Garza\u2019s death, the parties\u2019 inability to continue to agree on a proper choice of health care provider, a decision must be made regarding Worker\u2019s second selection rights.\n11. A party exercising the right of second selection cannot continue to change doctors at will, and so ... Worker in [t]his case would normally be bound by [her] choice of Dr. Garza.\n12. However, because Dr. Garza has passed, and clearly he cannot continue to provide reasonable care, Worker should be allowed some relief, especially where the parties\u2019 interim agreements for medical care have reached an impasse.\n13. Worker is hereby allowed to make a formal, second selection of a treating physician to take over Dr. Garza\u2019s care, pursuant to [NMSA 1978,] Section 52-1-49 [ (1990).]\n{6} Employer appeals, contending that, having selected Dr. Garza as a second selection and, upon Dr. Garza\u2019s death, having selected Dr. Sloan, Worker was not permitted under Section 52-1-49 to select Dr. Esparza to replace Dr. Sloan absent required proof that Dr. Sloan\u2019s care was unreasonable.\nDISCUSSION\nA. Selection of Providers Under Section 52-1-49\n{7} Upon notice of an accident, an employer must provide the injured worker reasonable and necessary health care services from a provider in a timely manner. Section 52-1-49(A). The employer may initially select the provider or may allow the worker to do so. Section 52-l-49(B). After the initial sixty-day period, the party who did not make the initial selection may select a provider. Section 52-1-49(0). Unless the employer and the worker otherwise agree, the party making this second selection of a provider is to give notice of the selection to the other party. Id. The party making this second selection does not have to show that the first provider\u2019s care was unreasonable, Chavez, 1998-NMCA-175, \u00b6 6, 126 N.M. 335, 968 P.2d 1198, although the other party can file an objection to the second selection. Section 52-1-49(D); see Chavez, 1998-NMCA-175, \u00b6 7, 126 N.M. 335, 968 P.2d 1198 (stating that \u201cthe party making the second selection has unfettered discretion to choose a new physician,\u201d leaving the burden on the other party to establish that the care of the provider selected second will be unreasonable). In the present case, as indicated earlier in this opinion, Employer made the initial selection, Worker made the second selection, and Employer did not object to the second selection, who was Dr. Garza. Nor, when Dr. Garza died, did Employer object to Worker\u2019s choice of a replacement, who was Dr. Sloan.\n{8} If the worker or the employer disagrees with the choice of a provider by the other party at any time and they cannot agree otherwise, the party requesting the change in provider is to submit a request for a change of provider to a WCJ. Section 52-1-49(E). That request must contain the reasons for the request, and the person making the request has the burden of proving to the WCJ that the care being received is not reasonable. Section 52-l-49(F). The WCJ is required to render a decision within seven days of the request. Id. In the present ease, Employer disagreed with Worker\u2019s selection of Dr. Esparza to replace Dr. Sloan, and Worker filed a formal request with a WCJ to allow a change to Dr. Esparza. It was this request that the WCJ entertained. Worker presented no testimony or documentary evidence. Although given the opportunity to have an evidentiary hearing scheduled, Worker did not request an evidentiary hearing. Her counsel indicated only that she would testify that Dr. Sloan\u2019s care was inadequate and did not meet her needs as she perceived them. In Employer\u2019s view, Worker had had sufficient medical care. The WCJ decided the issues in Worker\u2019s favor.\nB. The Selection Issue\n{9} The WCJ did not decide this case based on the merits of whether Worker could change to Dr. Esparza because Dr. Sloan\u2019s care was not reasonable. The question on appeal is whether Worker was entitled under Section 52-l-49(E) and (F) to change her provider to Dr. Esparza despite lack of any evidence showing that Dr. Sloan\u2019s care was not reasonable. This Court reviews workers\u2019 compensation orders using the whole record standard of review. Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 126, 767 P.2d 363, 365 (Ct.App.1988), modified on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. Whole record review contemplates a canvass by the reviewing court of \u201call 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 and the appellate court is to \u201cdeeide[ ] whether there is evidence for a reasonable mind to accept as adequate to support the conclusion reached.\u201d Id. at 128, 767 P.2d at 367. This Court reviews the WCJ\u2019s application of the law to the facts de novo. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, \u00b6 13, 137 N.M. 497, 113 P.3d 320.\n{10} Employer takes issue with certain findings of the WCJ. First, as an aside, Employer states that the WCJ made a series of findings despite the absence of any evidence other than Employer\u2019s three exhibits. In regard to certain findings, Employer argues that nothing in Section 52-1-49 requires WCA jurisdiction to be formally invoked by filing a document where the employer does not object to a provider. Employer attacks the WCJ\u2019s finding that Dr. Esparza was a replacement for Dr. Garza, rather than a third selection, because this determination ignored the evidence that Dr. Sloan in fact replaced Dr. Garza when Worker chose Dr. Sloan and that Dr. Sloan treated Worker for over a year after Dr. Garza\u2019s death. Employer contends that Dr. Esparza was not a \u201csecond selection,\u201d but was, rather, a third selection, requiring Worker to prove that Dr. Sloan\u2019s care was unreasonable, a burden Worker failed to sustain.\n{11} Employer relies on Chavez as authority to support its arguments. Similar to the present case, in Chavez the employer made the initial selection and the worker made the second selection. 1998-NMCA-175, \u00b6 2, 126 N.M. 335, 968 P.2d 1198. A year or so later, the worker began seeing another doctor, apparently with the acquiescence of the employer. Id. Almost a year after that, the worker gave notice to the employer that she was changing to yet another health care provider. Id. The employer objected, and in a hearing on the issue the workers\u2019 compensation judge determined that the employer had not presented any evidence establishing that the new selection would be unreasonable. Id. \u00b6 3.\n{12} In Chavez, this Court held that the workers\u2019 compensation judge erred in determining that the worker had an unlimited right to change to the last provider absent a showing by the worker of unreasonableness in current care. Id. \u00b6 10. We explained that the worker\u2019s discretion in selecting the second provider was unrestricted and that the employer did not challenge that second selection or the change a year later from that second selection to a new provider. Id. \u00b6 9. It was the worker\u2019s next, newly desired selection that created the issue, and as to that we indicated that after the initial and second selections, under Section 52-l-49(F), \u201cany further change in physicians places the burden of proving that the present physician\u2019s care is unreasonable upon the party seeking to change physicians.\u201d Chavez, 1998-NMCA-175, \u00b6 9, 126 N.M. 335, 968 P.2d 1198. We held that the workers\u2019 compensation judge erred in placing the burden of proof on the employer, and the worker could not prevail because she failed to sustain her burden of proof. Id. \u00b6 10.\n{13} We are unable to discern the significance of the WCJ\u2019s findings relating to formal requirements, as expressed in findings 6 and 7, which discuss invocation of WCA jurisdiction and the lack of a written agreement characterizing any doctor as a permanent replacement. The WCJ\u2019s findings and order do not contain any references to any statutory or other legal requirements in regard to such formalities. Nor do the findings and order explain how the failure to adhere to any particular formality supported a determination in Worker\u2019s favor. Worker says nothing on the subjects in her brief. Also making it difficult for us to understand the legal basis for the WCJ\u2019s determination in favor of Worker is the absence in the findings and order of any legal or policy rationale for the finding that Worker\u2019s selection of Dr. Esparza constituted a second selection under the Section 52-1-49. The WCJ states merely that the selection of Dr. Esparza was Worker\u2019s second selection, and that because Dr. Garza was no longer able to provide reasonable care \u201cWorker should be allowed some relief, especially where the parties\u2019 interim agreements for medical care have reached an impasse.\u201d\n{14} We do not see how the WCJ\u2019s findings rationally or logically tie in to how the WCJ arrived at the conclusion that the selection of Dr. Esparza was Worker\u2019s second selection. Nor do we see how the findings support the WCJ\u2019s ultimate decision in Worker\u2019s favor. After Dr. Garza\u2019s passing, the parties agreed that Dr. Sloan would continue with Worker\u2019s care as her provider. The only impasse in this case occurred when Worker wanted to change from Dr. Sloan to Dr. Esparza. That impasse was resolvable through adjudication by the WCJ. Worker did not present evidence that Dr. Sloan\u2019s care was unreasonable, and on appeal Worker does not argue that her offer of proof was a sufficient substitute for testimony, nor does she argue that the WCJ unreasonably deprived her of an opportunity to present evidence.\n{15} Worker attempts to support the WCJ\u2019s ultimate determination in her favor by characterizing the main issue in the appeal as \u201cwhether a WCJ will be given the discretion needed to effectively decide [health care] provider ... issues\u201d and by arguing that the WCJ\u2019s exercise of discretion in health care decisions such as the one in this case should be left untouched by appellate courts. Worker devotes one page of a total two-page argument to her contention that this Court should give virtually complete deference to the discretion of the WCJ. Worker\u2019s rationale is that \u201can injured worker cannot wait for an appellate court to decide [a provider] issue because most medical decisions ... need to be decided quickly\u201d and that deferring to the WCJ\u2019s decision \u201cis the best way to quickly decide these issues.\u201d She argues that the WCJ as decision-maker is closest to the case and \u201calmost always has the best perspective on the case.\u201d Therefore, according to Worker, \u201cdecisions regarding an injured worker\u2019s [health care] should remain in the discretion of the WCJ.\u201d Worker points to different scenarios in which an injured worker may need a new doctor or in which a new doctor might otherwise be appropriate and argues that those instances show why the WCJ\u2019s discretion should prevail. Worker states that protection of this discretion is critical and that \u201c[i]t makes little sense for the Court of Appeals or the Supreme Court to review each and every decision a WCJ makes regarding [health care], especially when, in most cases, it will stall the injured worker\u2019s medical treatment for a year or more.\u201d\n{16} Worker devotes the second of her two-page argument to an argument that Chavez does not, as applied to the facts that occurred after Dr. Garza\u2019s death, require application of Section 52-1-49 and reversal. She attempts to distinguish Chavez arguing that, unlike the present case, in Chavez \u201cthe current authorized [provider] had not died and the parties had not informally agreed on another interim doctor to take over the worker\u2019s care\u201d and that \u201cthe worker was arguing for unrestricted power to choose her doctors.\u201d She argues that she \u201cis not asking for unfettered control over choosing her doctors.\u201d That Worker\u2019s attempt to distinguish Chavez on its facts bears no fruit seems all but conceded by Worker in her answer brief where, in concluding her argument on Chavez, she reverts to her primary argument that the WCJ is to be affirmed based on the view that this Court should \u201crecognize and protect a WCJ\u2019s discretion to resolve most [provider] disputes between the parties because a WCJ is, in most cases, the person best positioned to decide those cases.\u201d\n{17} We are not persuaded by Worker\u2019s arguments. She does not argue how the WCJ\u2019s findings or the law support the ultimate determination in her favor. She in effect argues for no appellate review of decisions by workers\u2019 compensation judges on health care provider issues. She impliedly advocates for an abuse-of-discretion standard of review. Worker appears to recognize that the WCJ\u2019s determination could be problematic. At the outset of her answer brief, under her \u201csummary of facts,\u201d she states that \u201c[r]emand to the WCJ for an evidentiary hearing would probably be appropriate in this case if the Court is unwilling to affirm.\u201d On whole record review, we hold that Worker\u2019s selection of Dr. Garza was not her second selection, that she was required to prove that the care of her current provider, Dr. Sloan, was unreasonable, and she did not sustain that burden.\n{18} We understand that there will be circumstances in which a worker feels it necessary to change providers after the initial and second selections of providers have occurred. There is no question that the Workers\u2019 Compensation Act is to \u201cbe interpreted to assure the quick and efficient delivery of indemnity and medical benefits to injured ... workers.\u201d NMSA 1978, \u00a7 52-5-1 (1990). However, Worker has not shown why she could not obtain an evidentiary hearing and present testimony of unreasonable current care and do so within a short time frame. She in no way faults the WCJ in regard to scheduling. To the extent that the need to change providers is legitimate but inadequately addressed in the workers\u2019 compensation statutes, we suggest that the matter should be addressed by the Legislature. Similarly, Worker\u2019s concern about health care relief getting bogged down because the appellate process is available to an employer is not a matter this Court can resolve. Further, if this Court\u2019s standard of review on the issue at hand should be changed to one of abuse of discretion, that change must come from our Supreme Court. In the meantime, our standard of review is full record review as discussed in Tollman combined with de novo review to the extent we are required to construe workers\u2019 compensation-related statutes.\nCONCLUSION\n{19} We reverse the decision of the WCJ.\n{20} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY, Chief Judge, and LINDA M. VANZI, Judge.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Bogardus & Scott, P.C., Robert L. Scott, Albuquerque, NM, for Appellee.", "Butt Thornton & Baehr, P.C., Emily A. Franke, Carlos G. Martinez, Albuquerque, NM, for Appellant City of Albuquerque." ], "corrections": "", "head_matter": "2010-NMCA-022\n228 P.3d 525\nJudy CHAVEZ, Worker-Appellee, v. CITY OF ALBUQUERQUE and Risk Management Division, Employer/Insurer-Appellants.\nNo. 29,133.\nCourt of Appeals of New Mexico.\nDec. 21, 2009.\nBogardus & Scott, P.C., Robert L. Scott, Albuquerque, NM, for Appellee.\nButt Thornton & Baehr, P.C., Emily A. Franke, Carlos G. Martinez, Albuquerque, NM, for Appellant City of Albuquerque." }, "file_name": "0741-01", "first_page_order": 777, "last_page_order": 782 }