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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ASHLEY VIGIL,
3 Worker-Appellant,
4 v. NO. 32,647 & 32,657
5 (Consolidated)
6 GENERAL PARTS, and
7 NEW HAMPSHIRE INSURANCE
8 COMPANY, c/o GALLAGHER
9 BASSETT,
10 Employer/Insurer-Appellees.
11 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
12 Terry S. Kramer, Workers’ Compensation Judge
13 Michael J. Doyle
14 Los Lunas, NM
15 for Appellant
16 Hoffman Kelley, LLP
17 Michelle D. Lopez
18 Albuquerque, NM
19 for Appellee
1 MEMORANDUM OPINION
2 GARCIA, Judge.
3 {1} Worker, Ashley Vigil, suffered a compensable workplace accident on
4 December 6, 2010, and received non-emergency medical care following the accident.
5 She appeals from an order entered by the Workers’ Compensation Judge (WCJ)
6 sustaining the objection to her notice of change of healthcare provider (HCP) filed by
7 Employer, General Parts, and its insurer, New Hampshire Insurance Co., c/o Gallagher
8 Bassett (collectively, Employer). Employer concedes that the WCJ erred in
9 concluding that a letter it sent to Worker satisfied its requirement to notify Worker of
10 the HCP selection process. See 11.4.4.11(C)(2)(a) NMAC (6/13/2003). Based on this
11 concession, we must reverse the WCJ’s order. We remand for the WCJ to consider in
12 the first instance whether Employer is entitled to relief on alternate grounds and to
13 consider Worker’s request for attorney fees and costs.
14 DISCUSSION
15 {2} The Workers’ Compensation Act provides, in pertinent part, that “[t]he
16 employer shall initially either select the health care provider for the injured worker or
17 permit the injured worker to make the selection.” NMSA 1978, § 52-1-49(B) (1990).
2
1 The employer is required to communicate its decision with respect to which party will
2 choose the initial HCP to the worker in writing, within a reasonable period of time.
3 See 11.4.4.11(C)(2)(a) NMAC (6/13/2003); see also Howell v. Marto Elec., 2006-
4 NMCA-154, ¶¶ 15, 18, 140 N.M. 737, 148 P.3d 823. If the employer fails to give the
5 required notice, then “the employer shall be presumed, absent other evidence, to have
6 selected the HCP initially.” 11.4.4.11(C)(2)(b) NMAC (6/13/2003).
7 {3} The WCJ concluded that Employer satisfied the notice requirement set forth at
8 11.4.4.11(C)(2)(a) NMAC (6/13/2003) by sending a letter to Worker on April 28,
9 2011, advising her of the HCP selection process and notifying her that it was
10 exercising its right of second selection. Employer concedes in its answer brief that the
11 letter it sent to Worker “almost certainly qualifies as a ‘confirmatory’ notice letter,
12 which does not satisfy the [written] notice requirement.” See, e.g., Rico v. Montoya,
13 No. 31,127, mem. op. (N.M. Ct. App. June 16, 2011) (non-precedential); Cribbs v.
14 Coastal Chem., No. 29,896, mem. op. (N.M. Ct. App. Sept. 30, 2010) (non-
15 precedential). Employer recognizes that, based on this concession, it is presumed to
16 have selected the initial HCP.
17 {4} Employer asks us to find that it presented sufficient “other evidence” to
18 overcome the presumption set forth at 11.4.4.11(C)(2)(b) NMAC. See
19 11.4.4.11(C)(2)(b) NMAC (6/13/2003) (stating that “the employer shall be presumed,
3
1 absent other evidence, to have selected the HCP initially.” (emphasis added)).
2 Employer points specifically to evidence that one of Worker’s healthcare providers
3 informed Worker of her HCP selection rights in a telephone conversation on January
4 24, 2011. Whether such evidence is sufficient to overcome the presumption is an
5 interesting question, and one that we have not decided previously. See, e.g., Howell,
6 2006-NMCA-154, ¶ 33 (holding that “the WCJ erred as a matter of law in concluding
7 that the presumption in 11.4.4.11(C)(2)(b) NMAC [6/13/2003] could be rebutted by
8 evidence that [the e]mployer did not deliberately select [a particular provider] as the
9 initial HCP [and] express[ing] no opinion as to whether [the e]mployer may otherwise
10 rebut the presumption with other evidence. . . .”).
11 {5} Worker argues, however, that this issue was not preserved for our review.
12 Employer claims that it preserved the issue “implicitly rather than [in] a more heavy-
13 handed approach.” Employer argues: “While not explicitly citing 11.4.4.11(C)(2)(b)
14 [NMAC 6/13/2003] or directly stating that there was sufficient evidence to rebut the
15 presumption, [Employer]’s closing argument was predicated on establishing that
16 enough testimony was elicited to successfully rebut the presumption.” We are not
17 persuaded.
18 {6} In order to preserve an argument for review, “it must appear that appellant fairly
19 invoked a ruling of the trial court on the same grounds argued in the appellate court.”
4
1 Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717. That
2 is clearly not the case here. The record reflects that Employer argued only that the
3 letter it sent to Worker on April 28, 2011, satisfied the notice requirement; it did not
4 argue that it presented sufficient other evidence to overcome the presumption that it
5 selected the initial HCP. We will not consider this argument for the first time on
6 appeal. See id. (“Where the record fails to indicate that an argument was presented to
7 the court below, unless it is jurisdictional in nature, it will not be considered on
8 appeal.”).
9 {7} We thus reverse the WCJ’s order. We conclude that the letter Employer sent to
10 Worker did not satisfy the written notice requirement set forth at 11.4.4.11(C)(2)(a)
11 NMAC (6/13/2003). We remand for the WCJ to consider, in the first instance,
12 whether Employer had presented sufficient “other evidence” to overcome the
13 presumption set forth at 11.4.4.11(C)(2)(b) NMAC (6/13/2003). The WCJ must also
14 consider Worker’s claim for attorney fees and costs and make appropriate findings
15 and conclusions on that claim.
16 CONCLUSION
17 {8} For the foregoing reasons, we reverse the WCJ’s order sustaining Employer’s
18 objection to Worker’s notice of change of HCP. We remand for the WCJ to consider
19 and determine whether Employer had presented sufficient “other evidence” to
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1 overcome and rebut the presumption set forth at 11.4.4.11(C)(2)(b) NMAC, and to
2 also consider Worker’s request for attorney fees and costs.
3 {9} IT IS SO ORDERED.
4 ______________________________
5 TIMOTHY L. GARCIA, Judge
6 WE CONCUR:
7 ____________________________
8 CYNTHIA A. FRY, Judge
9 ____________________________
10 J. MILES HANISEE, Judge
6