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                                                                       New Mexico Compilation
                                                                     Commission, Santa Fe, NM
                                                                    '00'04- 10:54:16 2015.09.01

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-083

Filing Date: May 28, 2015

Docket No. 32,413

MARGARET M.M. TRACE,

       Worker-Appellee,

v.

UNIVERSITY OF NEW MEXICO
HOSPITAL, Self-Insured,

       Employer/Insurer-Appellant.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Gregory D. Griego, Workers’ Compensation Judge

Margaret M. McNamara Trace
Albuquerque, NM

Pro Se Appellee

Paul L. Civerolo, LLC
Paul L. Civerolo
Albuquerque, NM

for Appellant

                                         OPINION

VIGIL, Judge.

{1}     This is a workers’ compensation case which presents us with a question of first
impression: whether the appointment of a case manager for ongoing coordination of health
care services by a workers’ compensation judge (WCJ) constitutes a “litigation expense” in
connection with a proceeding before the Workers’ Compensation Administration (WCA),
thereby exempting the case manager’s fee from the Procurement Code. We conclude that
such services do not constitute a “litigation expense” and reverse the order of the WCJ to the
contrary.

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I.     BACKGROUND

{2}     Worker was a registered nurse, working the night shift at University of New Mexico
Hospital when she injured her back while lifting and turning a patient on October 5, 1994.
On September 1, 1995, Worker filed a claim with the WCA against University of New
Mexico Hospital and its insurer, New Mexico Risk Management (collectively Employer).
From the beginning the case was combative. There was disagreement regarding the
compensable injuries, allegations that the employer unilaterally changed treating physicians,
that Employer improperly refused payment for necessary medical services, that Employer’s
agent interfered with the doctor-patient relationship, that medical services were unjustifiably
curtailed or terminated, and that compensation benefits were improperly curtailed.

{3}     Trial was finally held on May 7-8, 1996, before WCJ Wiltgen, who entered a
compensation order on June 3, 1996, concluding that as a direct and proximate result of the
October 1994 accident, “Worker suffered an injury to her low back with additional effects
on her shoulder, elevated blood pressure and emotional overlay.” WCJ Wiltgen further found
that “Worker’s present condition and disability are permanent” and that Worker had
“continuing need for medical care of her job-related injuries including psychological
treatment.”

{4}      Worker asserts that after entry of the compensation order, Employer’s adjuster
“continued to deny various treatments and medications” and that “Worker had increasing
pain; some symptoms related to the previous injuries, and other new symptoms.” Worker
asserts that there were disputes between Worker’s attorney and Employer’s adjuster and the
nurse case manager, as well as a number of claims, for exacerbations or new injuries “due
to the denial of care and medical bills,” and complaints for a “pattern of bad faith and unfair
claims processing.” Consequently, there were additional mediation conferences and hearings
before the WCA, with the result that on October 27, 1999, WCJ Wiltgen appointed Ms. St.
Martin as “independent nurse case manager” to “coordinate future medicals and treatment
and act as nurse case manager.”

{5}     Additional claims, responses, and motions followed, and issues remained unresolved.
Following another mediation conference in December 2003, the parties agreed that Ms. St.
Martin would pick a physician to conduct an independent medical examination. Following
the independent medical examination and Ms. St. Martin’s review, she determined that an
independent medical panel should be convened. WCJ Wiltgen retired, and the case was
reassigned to WCJ Griego in January 2004.

{6}     Worker filed an amended complaint on April 27, 2004. Following additional
hearings, discovery, and the independent medical panel review, a final hearing on the April
27, 2004 amended complaint was set. The final compensation order, filed on February 22,
2006, determined that Worker suffered multiple injuries as a result of the 1994 accident, and
that medical treatment, treatment modalities, and alternative therapies “may be necessary in
the future,” which “will be authorized in collaboration with the treating physician and nurse

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case manager.” The compensation order further ordered that “Ms. . . . St. Martin shall
continue to act as the court ordered nurse case manager concerning [Worker’s] work related
injuries[.]”

{7}    In 2012, Employer moved that Ms. St. Martin be discontinued from serving as the
court-appointed nurse case manager because her employer’s contract with the WCA had
expired, and Employer asserted, her continued appointment violated the Procurement Code.
WCJ Griego denied the motion, on the basis that the Procurement Code “does not apply to
Administrative/Court Ordered Decrees.” Employer moved for reconsideration, and at the
hearing WCJ Griego expressed his understanding that because Ms. St. Martin’s appointment
was court ordered, it qualified as a litigation exemption under the Procurement Code. WCJ
Griego therefore denied the motion in a memorandum opinion reasoning:

              Services can be directed to be paid by Risk Management under the
       Workers’ Compensation Act to providers who have not entered into a
       contract with State Risk Management under the procurement code. For
       example, professional services to a worker from an attorney or a physician
       can be ordered paid by court order. It is not necessary for those services to
       be provided under a contract under the procurement code.

               There is no question that the procurement code would be applicable
       if State of New Mexico were voluntarily providing services without
       intervention of the administration. However, the distinguishing characteristic
       here is that the services being provided are by direction by court order and
       not being voluntarily provided by Risk Management.

Employer appeals.

II.    DISCUSSION

{8}    Employer makes two arguments on appeal: First, the WCA has a statutorily and
administratively created system of case management and a WCJ cannot unilaterally order
case management by circumventing the system. Second, the WCJ’s order exceeds the WCJ’s
authority and violates the Procurement Code because the code requires a contract for
professional services.

{9}    In response, Worker argues that Employer did not preserve the issues on appeal.
Worker reasons that Employer has complied with Ms. St. Martin being the court-appointed
case manager for fifteen years without incident, and this appeal is the first time Appellants
have raised the issue. Worker also argues that the WCJ’s order falls within the Procurement
Code’s litigation exemption.

{10} We first address Worker’s preservation concerns, then we examine the WCA and the
Procurement Code.

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A.      Preservation

{11} “To preserve a question for review it must appear that a ruling or decision by the
[tribunal] was fairly invoked[.]” Rule 12-216(A) NMRA. The principal purpose of this rule
is to alert the trial judge to the claimed error, giving the trial court an opportunity to correct
the matter. Madrid v. Roybal, 1991-NMCA-068, ¶ 7, 112 N.M. 354, 815 P.2d 650. Worker
argues that Employer failed to invoke a ruling by the WCJ in order to preserve its argument
on appeal. We disagree.

{12} Following the initial August 29, 2012 order, Employer made a motion to reconsider
the order continuing St. Martin as the nurse case manager. In its motion, Employer asserted
that the appointment of St. Martin without a contract violates the Procurement Code. WCJ
Griego then held a hearing to address the controversy of St. Martin’s status as the nurse case
manager. All parties had the opportunity to address their concerns at the hearing. After
hearing Employer’s argument again that the August 29, 2012 order violates the Procurement
Code, WCJ Griego disagreed and reaffirmed his ruling.

{13} We therefore conclude that Employer alerted the WCJ to the asserted error it now
argues on appeal and that the issue was properly preserved for appellate review.

B.      Standard of Review

{14} Our review requires us to examine the Workers’ Compensation Act, NMSA 1978,
§§ 52-1-1 to -70 (1929, as amended through 2013), NMSA 1978, § 52-4-3 (1990), regarding
case management for health care services, and NMSA 1978, § 13-1-30 (2005) and NMSA
1978, § 13-1-98 (2013), of the Procurement Code. “We apply de novo review to interpret
the meaning of a statute.” Jones v. Holiday Inn Express, 2014-NMCA-082, ¶ 10, 331 P.3d
992. “When engaging in statutory construction, our primary concern is to determine and give
effect to legislative intent.” Id. (internal quotation marks and citation omitted). “In
discerning the Legislature’s intent, we are aided by classic canons of statutory construction,
and we look first to the plain language of the statute, giving the words their ordinary
meaning, unless the Legislature indicates a different one was intended.” Faber v. King,
2015-NMSC-___, ¶ 9, __ P.3d ___ (Nos. 34,204 and 34,194, Mar. 12, 2015) (alteration,
internal quotation marks, and citation omitted). We also consider the statute’s function in the
comprehensive legislative scheme. Id.

C.      Workers Compensation Act

{15} The Act requires the WCA to establish a “case management” system providing for
“the ongoing coordination of health care services provided to an injured or disabled
worker[.]” Section 52-4-3(A)-(B). Thus, in providing ongoing coordination of health care
services, case managers may be used for developing a treatment plan, monitoring the
treatment, and the injured worker’s progress, determining whether other health services are
appropriate and cost-effective, and formulating a plan for the injured worker to return to

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work. Section 52-4-3(B).

{16} Further, the Act directs that the WCA “shall contract with an independent
organization” to assist with the administration of the case management system. Section 52-
4-3(C). The administrative rules of the WCA define a “contractor” as “any organization that
has a legal services agreement currently in effect with the [WCA] for the provision of
utilization review or case management[.]” 11.4.7.7(L) NMAC (12/31/2011). When case
management is required, “The WCA will assign cases to its contractor for case management,
as provided by the contract in effect.” 11.4.7.14(G)(1)(a) NMAC (01/14/2005)1 and when
the WCA refers a case to a case manager, “the WCA shall pay for the case management
services pursuant to the contract.” 11.4.7.14(G)(1)(e)(i) NMAC (01/14/2005).

{17} The plain language of the statute demonstrates that the Legislature intended the case
manager to be a contractor with a contract in effect. The administrative rules implement this
intent by creating a framework requiring case managers to be contractors who are paid as
provided in the contract. In this case, the contract with Ms. St. Martin’s employer expired.
We now turn to whether WCJ Griego could order that Ms. St. Martin continue as Worker’s
case manager in the absence of a contract under the Procurement Code.

D.     Procurement Code

{18} The Procurement Code applies to all expenditures by state agencies for the
procurement of goods and services from private entities, unless the Procurement Code itself
provides otherwise. Section 13-1-30. Here, the WCA requires a contract for case
management services and the Procurement Code requires a contract for any services, unless
otherwise provided. The only exception which the Worker asks us to consider, and the only
exception relied on by WCJ Griego is the litigation exemption under Section 13-1-98(R).
This provision of the Procurement Code exempts:

       contracts and expenditures for legal subscription and research services and
       litigation expenses in connection with proceedings before administrative
       agencies or state or federal courts, including experts, mediators, court
       reporters, process servers and witness fees, but not including attorney
       contracts[.]”

Section 13-1-98(R).

{19} We are therefore asked to conclude that the fee of a case manager, responsible for
the ongoing coordination of health care services provided to an injured or disabled worker,
constitutes a litigation expense in connection with a WCA proceeding because the case


       1
         11.4.7.14 NMAC was amended in 2013. We apply the administrative rules that were
in effect when the order was entered in 2012.

                                             5
manager is appointed by a WCJ. We decline the invitation on the basis that the services
provided by a case manager under the WCA are not incurred “in connection with” litigation.
Rather, such fees are incurred following a determination that a worker is injured or disabled
and entitled to benefits under the WCA, and ongoing coordination of the healthcare services
is required. Stated another way, while a case manager’s fee may be the consequence of
litigation, such fees are not an expense of litigation.

{20} In this case, Ms. St. Martin has served as Worker’s case manager since 1999, and she
has acquired substantial knowledge about Worker’s case, her issues, and her medical history.
Continuing her services seems to be the most efficient means for coordinating Worker’s
future care. In addition, we note that since Ms. St. Martin became involved as Worker’s case
manager, the disputes between Worker, Employer, Employer’s insurance adjusters, and
Worker’s medical providers seem to have significantly resolved. This may very well be the
reason why WCJ Griego wished that her services continue. These are all excellent reasons
for seeking an amendment to the appropriate statutes. However, that is not our prerogative.
Nor can a WCJ exceed his statutory authority. See Jones, 2014-NMCA-082, ¶ 9 (stating that
workers’ compensation courts are tribunals of limited and special jurisdiction and have only
such authority as has been conferred on them by statute).

{21} For the foregoing reasons, we reverse the WCJ’s order appointing Ms. St. Martin to
continue as Worker’s case manager.

CONCLUSION

{22}   The order of the WCJ is reversed.

{23}   IT IS SO ORDERED.

                                              ____________________________________
                                              MICHAEL E. VIGIL, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
J. MILES HANISEE, Judge




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