 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 SALVADOR RICO,

 8          Worker-Appellant,

 9 v.                                                                           NO. 31,127

10 JAMES R. MONTOYA, d/b/a THE ROCK
11 CONSTRUCTION COMPANY, and NEW
12 MEXICO MUTUAL CASUALTY COMPANY,

13          Employer/Insurer-Appellees.

14 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
15 Victor S. Lopez, Judge

16 Rose Bryan, P.C.
17 Rose Bryan
18 Albuquerque, NM

19 for Appellant

20   Yenson, Lynn, Allen & Wosick, P.C.
21   Phyllis Savage Lynn
22   April D. White
23   Albuquerque, NM

24 for Appellees

25                                 MEMORANDUM OPINION

26 VANZI, Judge.
 1        Worker appeals from an order sustaining Employer/Insurer’s objection to

 2 Worker’s notice of change of health care provider (HCP). We issued a notice of

 3 proposed summary disposition, proposing to reverse. Employer/Insurer has filed a

 4 memorandum in opposition. After due consideration, we remain unpersuaded. We

 5 therefore reverse.

 6        Worker’s entitlement to change his HCP turns upon the effect of a letter which

 7 Employer/Insurer sent to him approximately two weeks after he was injured. In that

 8 letter, Employer/Insurer wrote to “confirm” that it had not chosen the initial HCP but

 9 rather had “allowed” Worker to make the initial selection. [MIO 2] Insofar as he had

10 already received treatment from Dr. Sanchez, the letter specifically identified Dr.

11 Sanchez as Worker’s “chosen” HCP. [MIO 2]

12        As a matter of law, it was incumbent upon Employer/Insurer to advise Worker,

13 in writing and within a reasonable period of time, of its decision either to select the

14 initial HCP itself or to allow Worker to make the initial selection. NMSA 1978, § 52-

15 1-49(B) (1990); 11.4.4.11(C)(2)(b) NMAC (2003); Howell v. Marto Elec., 2006-

16 NMCA-154, ¶¶ 15, 18, 140 N.M. 737, 148 P.3d 823 (recognizing that the employer

17 is “required to communicate their initial decisions with respect to which party will

18 choose the initial HCP to their workers in writing” and observing that this

19 communication must occur “within a reasonable period of time”). Employer/Insurer


                                              2
 1 contends that its letter fulfilled this requirement by indicating that it had decided to

 2 allow Worker to make the initial selection. [MIO 5-6]

 3         In Cribbs v. Coastal Chemical, No. 29,896, slip op. at 1 (N.M. Ct. App. Sept.

 4 30, 2010), we addressed a letter that was analogous in all material respects. As in this

 5 case, the employer/insurer wrote the worker a “confirmatory” letter in which it took

 6 the position that the worker had already selected the initial HCP by seeing a physician.

 7 Id. at 2. We concluded that this did not comply with the employer/insurer’s duty to

 8 advise the worker of his right to choose. Id. More specifically, we held that an

 9 employer/insurer “cannot provide notice in writing that a worker has the right to

10 choose an initial HCP and identify who that choice is in the same document without

11 defeating the concept of choice and the requirement of notice as contemplated by the

12 Legislature in Section 52-1-49(B) and articulated in 11.4.4.11(C)(2)(b) NMAC.”

13 Cribbs, No. 29896, slip op. at 3.

14         The letter at issue in this case is deficient in precisely the same respects. As in

15 Cribbs, Employer/Insurer took the position that Worker had already made a selection

16 and specifically identified the doctor. “[W]e decline to interpret a letter that states that

17 a worker has already made a selection as written notice that a worker may make a

18 selection.” Id. at 2.




                                                3
 1        In its memorandum in opposition, Employer/Insurer attempts to distinguish

 2 Cribbs on its facts. [MIO 7] The letter at issue in this case contains some additional

 3 language, including Employer/Insurer’s assertion that it had already “allowed”

 4 Worker to choose the initial HCP, as well as a suggestion that Worker contact

 5 Employer/Insurer or an ombudsman if he disagreed with Employer/Insurer’s position.

 6 [MIO 2, 7] However, the inclusion of this language does nothing to satisfy the

 7 essential statutory and regulatory requirement, that Employer/Insurer inform Worker

 8 of his right to make a prospective choice. It is this critical shortcoming which renders

 9 the similarities between the letters, rather than their differences, controlling.

10        Employer/Insurer also argues that Cribbs should be distinguished on grounds

11 that we lack information about the nature and extent of the treatment that Worker

12 received from Dr. Sanchez.         [MIO 7-8]      However, this has no bearing on

13 Employer/Insurer’s obligation to provide reasonably prompt and legally adequate

14 notice of its decision with respect to the initial selection of HCP. As we held and

15 Howell and reiterated in Cribbs, an employer/insurer may not avoid its responsibility

16 in this regard by remaining silent for a period and subsequently relying on the

17 worker’s predictable act of obtaining care on his or her own to establish that the

18 worker made the initial HCP selection. Howell, 2006-NMCA-154, ¶ 30; Cribbs, No.

19 29,896, slip op. at 2. In light of Employer/Insurer’s failure to provide the requisite


                                               4
 1 notice in this case, the nature and extent of care that Worker received from Dr.

 2 Sanchez is immaterial.

 3        Finally, Employer/Insurer urges the Court to “disregard” Cribbs, arguing that

 4 it represents an unwarranted expansion of the statutory obligation to provide notice.

 5 [MIO 8] However, we do not share Employer/Insurer’s view, and we decline the

 6 invitation to abrogate our prior decision.

 7        Accordingly, for the reasons stated above and in our notice of proposed

 8 summary disposition, we reverse and remand for further proceedings consistent with

 9 this opinion.

10        IT IS SO ORDERED.


11                                         __________________________________
12                                         LINDA M. VANZI, Judge

13 WE CONCUR:



14 _________________________________
15 JAMES J. WECHSLER, Judge



16 _________________________________
17 MICHAEL E. VIGIL, Judge




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