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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LOUIE SANCHEZ,
3 Worker-Appellant,
4 v. No. 35,068
5 LOS LUNAS PUBLIC SCHOOLS
6 and CCMSI,
7 Employer/Insurer-Appellees.
8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
9 David L. Skinner, Workers’ Compensation Judge
10 Michael J. Doyle
11 Los Lunas, NM
12 for Appellant
13 Camp Law, LLC
14 Minerva Camp
15 Albuquerque, NM
16 for Appellees
17 MEMORANDUM OPINION
18 SUTIN, Judge.
1 {1} Worker has appealed from a compensation order. We previously issued a notice
2 of proposed summary disposition in which we proposed to uphold the decision of the
3 workers’ compensation judge (WCJ). Worker has filed a memorandum in opposition,
4 and Employer/Insurer has filed a memorandum in support, which we have duly
5 considered. Because we remain unpersuaded that reversible error occurred, we affirm.
6 {2} Worker raised four issues in his docketing statement, [DS 10, 13, 16, 17] three
7 of which he renews in his memorandum in opposition. [MIO 1, 9, 10] We will avoid
8 unnecessary repetition of the background and principles previously set forth in the
9 notice of proposed summary disposition, and instead, focus on the substantive content
10 of the memorandum in opposition.
11 {3} First and foremost, Worker asserts that the WCJ erred in declining to assign an
12 impairment rating [MIO 1-8], notwithstanding Worker’s failure to present competent
13 medical evidence in support thereof. [CN 2; RP 157 (¶ 30)] In reliance upon cases
14 decided under a previous version of the Workers’ Compensation Act and more recent
15 authority addressing residual capacity, Worker continues to argue that the WCJ should
16 have applied the AMA Guides himself and should have assigned an impairment rating
17 in the absence of expert medical testimony. [DS 10; MIO 1-3] However, as we
18 observed in the notice of proposed summary disposition, Worker’s argument runs
19 afoul of controlling precedent. In Yeager v. St. Vincent Hospital, 1999-NMCA-020,
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1 126 N.M. 598, 973 P.2d 850, this Court rejected the argument advanced by the worker
2 that a WCJ could assign an impairment rating in the absence of medical testimony on
3 the percentage of impairment based on the WCJ’s own comparison of the clinical
4 findings to the AMA Guides. Id. ¶ 14.
5 {4} In his memorandum in opposition, Worker observes that Yeager involved the
6 need for a specialist and further notes that Yeager did not foreclose any possibility that
7 a WCJ might properly assign an impairment rating in a proper case. [MIO 5] Be that
8 as it may, nothing in Yeager or any other authority of which we are aware requires a
9 WCJ to undertake to assign an impairment rating in the absence of medical testimony.
10 Moreover, Worker’s arguments ignore the ensuing discussion, where the Court
11 explained that “in cases that require some medical judgment in order to determine the
12 degree of impairment, the WCJ may not determine the worker’s impairment rating
13 without a medical expert opinion.” Id. ¶ 17. The findings in this case reflect that
14 “some medical judgment” was required, see id., which the WCJ lacked. [RP 158
15 (¶ 31)] Under the circumstances, the WCJ properly declined to assign an impairment
16 rating in the absence of expert medical opinion.
17 {5} We understand Worker to suggest that Yeager and other authorities addressing
18 the use of the AMA Guides to assign impairment ratings, including Madrid v. St.
19 Joseph Hospital, 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250, should be
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1 reconsidered. [MIO 5-8] However, we are in no position to second-guess decisions
2 rendered by the New Mexico Supreme Court, and we decline the invitation to limit,
3 abrogate, or attempt to limit Yeager. See generally State ex rel. Martinez v. City of Las
4 Vegas, 2004-NMSC-009, ¶¶ 20, 24, 135 N.M. 375, 89 P.3d 47 (observing that the
5 Court of Appeals is bound by Supreme Court precedent, and reiterating the
6 importance of stare decisis, in light of which a compelling reason is required to
7 overrule precedent).
8 {6} By his second issue, Worker asserts that the testimony of a doctor who
9 performed an independent medical examination (IME), Dr. Auerbach, should have
10 been excluded. [MIO 9] We previously invited the parties to supply clarity on the
11 question of mutual agreement. [CN 5] Employer/Insurer’s response ambiguously
12 indicates that Worker’s primary healthcare provider opined “that the adjuster’s request
13 for an IME was reasonable” and that “he made the referral.” [MIS 2] It is unclear
14 whether the pronoun refers to the adjuster or the doctor, and Employer/Insurer fails
15 to mention whether the referral was made to Dr. Auerbach specifically. Worker’s
16 memorandum in opposition is far more clear. It unequivocally reflects that Worker’s
17 healthcare provider did not make the referral to Dr. Auerbach, and Worker did not
18 specifically agree to the selection of Dr. Auerbach for the purpose of conducting the
19 IME. [MIO 9] In light of this clarification, it seems apparent that the IME was
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1 unauthorized, and as such, Dr. Auerbach’s testimony and records should have been
2 excluded. See Brashar v. Regents of Univ. of Cal., 2014-NMCA-068, ¶¶ 15-16, 327
3 P.3d 1124 (holding that, in the absence of an appointment of an IME doctor by the
4 WCJ, the parties must mutually agree to the selection of a particular IME specifically;
5 a unilateral decision cannot be made by either party).
6 {7} Although we acknowledge the foregoing evidentiary error, the error was
7 harmless. As we observed in the notice of proposed summary disposition, Dr.
8 Auerbach’s opinions principally bore upon the question of impairment under the
9 AMA Guides. [RP 158 (¶ 33)] Although her opinion that Worker had no impairment
10 provided general support for the WCJ’s ultimate determination, regardless of that
11 testimony, Worker’s own failure to satisfy his burden of proof was fatal to his claim
12 for permanent partial disability (PPD) benefits. See Jurado v. Levi Strauss & Co.,
13 1995-NMCA-129, ¶¶ 11, 13, 120 N.M. 801, 907 P.2d 205 (observing that a worker
14 seeking PPD benefits must establish an impairment rating).
15 {8} In his memorandum in opposition, Worker observes that Dr. Auerbach’s
16 testimony was not limited to the question of impairment; her records also bore upon
17 the question of causation. [MIO 10] This brings us to Worker’s third issue on appeal,
18 by which he continues to assert that, absent Dr. Auerbach’s records, the evidence
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1 should be regarded as insufficient to support the WCJ’s decision on causation. [MIO
2 10]
3 {9} We perceive no merit to the argument. On the subject of causation, the WCJ’s
4 findings reflect that Worker did suffer non-specific low back pain as a natural and
5 direct result of the accident. [RP 156 (¶ 20)] In light of this determination, Worker was
6 awarded temporary total disability (TTD) benefits. [RP 157 (¶ 28)] Worker does not
7 take issue with the assigned maximum medical improvement (MMI) date, and he
8 appears to have been awarded TTD benefits in excess of his request. [RP 145 (¶ 33),
9 157-58 (¶¶ 28-29, 34)] The only other matter upon which causation would appear to
10 bear is the question of entitlement to PPD benefits [RP 1-2, 157-58 (¶¶ 30, 37)], and
11 as previously stated, Worker’s failure or inability to establish impairment foreclosed
12 that claim. Under the circumstances, the alleged error is harmless.
13 {10} In any event, as we noted in the notice of proposed summary disposition, with
14 respect to the scope of the injury caused by the workplace accident the WCJ did not
15 rely exclusively upon Dr. Auerbach’s records. [RP 156, 158] Worker does not dispute
16 that Dr. Castillo’s evaluation was properly admitted, and he acknowledges that the
17 evaluation supports the WCJ’s decision. [MIO 10] Although we understand Worker
18 to suggest that Dr. Castillo’s evaluation and the opinions contained therein were too
19 “limited” to overcome medical records tending to support the existence of a casual
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1 relationship between Worker’s medical condition and the workplace accident [MIO
2 10], we decline to second-guess the WCJ’s assessment. See generally Villa v. City of
3 Las Cruces, 2010-NMCA-099, ¶ 29, 148 N.M. 668, 241 P.3d 1108 (“We give
4 deference to a WCJ’s findings in regard to conflicting evidence of causation.”);
5 Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, ¶ 21, 120 N.M. 734, 906
6 P.2d 266 (“Generally, when there is conflicting medical testimony concerning
7 causation, the reviewing court will defer to the finder of fact.”); Wilson v. Yellow
8 Freight Sys., 1992-NMCA-093, ¶ 22, 114 N.M. 407, 839 P.2d 151 (“[W]here the
9 evidence bearing upon the issue of causation is conflicting, the fact that there was
10 evidence which, if accepted by the fact[-]finder, would have permitted it to reach a
11 different result does not constitute a basis for reversal.”).
12 {11} Accordingly, for the reasons stated in this Opinion and in the notice of proposed
13 summary disposition, we affirm.
14 {12} IT IS SO ORDERED.
15 __________________________________
16 JONATHAN B. SUTIN, Judge
17 WE CONCUR:
18 _______________________________
19 RODERICK T. KENNEDY, Judge
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1 _______________________________
2 M. MONICA ZAMORA, Judge
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