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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 ALBERT SERRANO,

 3          Worker-Appellant,

 4 v.                                                                                   No. 33,922

 5 LOS ALAMOS NATIONAL LAB and
 6 CCMSI (TPA),

 7          Employer/Insurer-Appellees.

 8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
 9 Leonard Padilla, Workers’ Compensation Judge

10 LeeAnn Ortiz
11 Albuquerque, NM

12 for Appellant

13 Camp Law, LLC
14 Minerva Camp, Esq.
15 Albuquerque, NM

16 for Appellees

17                                 MEMORANDUM OPINION

18 FRY, Judge.

19   {1}    Worker appeals the workers’ compensation judge’s (WCJ) compensation order
 1 rating his permanent impairment at 13% as opposed to the 18% testified to by the

 2 health care provider. Worker argues that the WCJ erred in admitting an impairment

 3 evaluation report by Dr. Marjorie Eskay-Auerbach, who the WCJ determined was

 4 prohibited from testifying under NMSA 1978, Section 52-1-51(C) (2013) (stating that

 5 “[o]nly a health care provider who has treated the worker pursuant to [NMSA 1978,

 6 Section 52-1-49 (1990)] or the health care provider providing the independent

 7 medical examination pursuant to this section may offer testimony at any workers’

 8 compensation hearing concerning the particular injury in question”). Worker also

 9 argues that in the absence of Dr. Eskay-Auerbach’s impairment evaluation report, the

10 evidence before the WCJ only supports a determination that Worker’s impairment

11 rating is 18%. Because we agree with Worker that the report constitutes testimony

12 under Section 52-1-51(C), we reverse.

13   {2}   Because this is a memorandum opinion and the parties are familiar with the

14 facts and procedural history of the case, we reserve discussion of the pertinent facts

15 for our analysis.

16 DISCUSSION

17 Worker Preserved His Argument Regarding Dr. Eskay-Auerbach’s Opinions

18   {3}   As an initial matter, we are unpersuaded by Employer’s argument that Worker

19 failed to preserve his argument regarding Dr. Eskay-Auerbach’s report. While we

20 acknowledge that Worker stipulated to the admission of Employer’s exhibit that

21 contained the report, we first note that the report was two pages among approximately


                                             2
 1 175 pages of an exhibit containing Worker’s medical records. Furthermore, during

 2 argument at the hearing regarding the stipulation of exhibits, Worker specifically

 3 argued that he objected to any opinions of Dr. Eskay-Auerbach being admitted due

 4 to Section 52-1-51(C). Most importantly, once Worker became aware that the report

 5 was included in Employer’s exhibits, Worker moved to strike the report. It is the

 6 WCJ’s conclusion on Worker’s motion to strike that Dr. Eskay-Auerbach’s

 7 impairment evaluation report did not constitute testimony that we review in this

 8 Opinion. Accordingly, we conclude that Worker’s argument was sufficiently

 9 preserved for appellate review. Garcia v. Jeantette, 2004-NMCA-004, ¶ 13, 134 N.M.

10 776, 82 P.3d 947 (“Although a reviewing court generally will not review a claim of

11 error unless the appellant timely objected below, it will do so when the trial court

12 addressed the untimely objection on the merits.”).

13 The District Court Erred in Denying Worker’s Motion to Strike Dr. Eskay-
14 Auerbach’s Report

15   {4}   Worker argues that the WCJ erred in admitting Dr. Eskay-Auerbach’s report

16 stating that Worker’s permanent impairment rating should be 13%. The WCJ

17 concluded in his order on Worker’s motion to strike the report that although Dr.

18 Eskay-Auerbach was prohibited from testifying under Section 52-1-51(C), her

19 opinion regarding Worker’s impairment rating did not “constitute testimony” and was

20 therefore admissible. We review this issue de novo. See Morgan Keegan Mortg. Co.

                                            3
 1 v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066 (stating that

 2 interpretation of a statute is a question of law which an appellate court reviews de

 3 novo).

 4   {5}   Section 52-1-51(C) “limits testimony at the compensation hearing to a treating

 5 physician or a health care provider who has provided an independent medical

 6 examination pursuant to the Act.” Banks v. IMC Kalium Carlsbad Potash Co., 2003-

 7 NMSC-026, ¶ 28, 134 N.M. 421, 77 P.3d 1014. Regulations curtail the use of live

 8 testimony at the compensation hearing. See 11.4.4.12(F)(1) NMAC (“Live medical

 9 testimony shall not be permitted, except by an order of the judge.”). Instead, the

10 regulations provide that “[d]eposition testimony of authorized [health care providers]

11 shall be admissible, in lieu of live testimony.” 11.4.4.12 (G)(4) NMAC.

12   {6}   In this case, the WCJ found that Dr. Eskay-Auerbach was neither a treating

13 physician nor a health care provider authorized to administer an independent medical

14 evaluation. The WCJ therefore concluded that Dr. Eskay-Auerbach’s deposition, and

15 the opinions contained therein, were inadmissible under Section 52-1-51(C). The

16 WCJ erred, however, in not extending this same rationale to Dr. Eskay-Auerbach’s

17 impairment evaluation report. In Jurado v. Levi Strauss & Co., this Court rejected the

18 argument that because a doctor’s impairment evaluation report was in written form

19 it did not constitute testimony. 1995-NMCA-129, ¶¶ 21-24, 120 N.M. 801, 907 P.2d


                                              4
 1 205. Because the doctor’s impairment evaluation report constituted testimony, it was

 2 subject to Section 52-1-51(C)’s requirement that the health care provider be either a

 3 treating physician or authorized to administer an independent medical evaluation.

 4 Jurado, 1995-NMCA-129, ¶ 24. Accordingly, because Dr. Eskay-Auerbach was

 5 prohibited from testifying under Section 52-1-51(C), her impairment evaluation

 6 report was likewise inadmissible.

 7   {7}   Furthermore, we are unpersuaded by Employer’s argument that the report does

 8 not constitute an opinion covered by Section 52-1-51(C). The statute restricts which

 9 health care providers can provide testimony “concerning the particular injury in

10 question.” Id. Dr. Eskay-Auerbach’s impairment evaluation report states that “to a

11 reasonable degree of medical probability,” Worker’s impairment rating should be

12 classified as a 13% impairment. Similarly, in Employer’s proposed findings of fact

13 and conclusions of law, Employer refers to the report in stating that “[t]he medical

14 opinions of Dr. Eskay-Auerbach were admitted into evidence” by the stipulation of

15 Worker to Employer’s exhibits. It can hardly be said that the impairment evaluation

16 report is not then an opinion by a health care provider “concerning the particular

17 injury in question.” Id.

18   {8}   In sum, Worker preserved his argument that any opinions by Dr. Eskay-

19 Auerbach were inadmissible under Section 52-1-51(C), notwithstanding his apparent


                                             5
 1 stipulation to Employer’s exhibits. Because the WCJ erred in concluding that the

 2 impairment evaluation was not testimony and relied on Dr. Eskay-Auerbach’s opinion

 3 in determining Worker’s permanent impairment rating, we reverse the WCJ’s

 4 compensation order.

 5 Substantial Evidence

 6   {9}    Worker argues that in the event we conclude that it was improper for the WCJ

 7 to consider Dr. Eskay-Auerbach’s impairment evaluation, substantial evidence

 8 supports the conclusion that Worker’s permanent impairment rating is 18%. The WCJ

 9 did not make such a finding below in order to allow this Court to review whether

10 substantial evidence supported such a finding. While we cannot make this

11 determination, Worker is entitled to pursue this argument on remand.

12 CONCLUSION

13   {10}   For the foregoing reasons, we reverse the WCJ’s compensation order and

14 remand for proceedings consistent with this Opinion.

15   {11}   IT IS SO ORDERED.


16                                         _______________________________
17                                         CYNTHIA A. FRY, Judge

18 WE CONCUR:




                                              6
1 ___________________________
2 JONATHAN B. SUTIN, Judge


3 ___________________________
4 LINDA M. VANZI, Judge




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