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

 2 JOSE CARBAJAL,

 3          Worker-Appellant,

 4 v.                                                                    NO. A-1-CA-35263

 5 PLAZA LATHING AND PLASTERING,
 6 LLC and NEW MEXICO MUTUAL,

 7          Employer/Insurer-Appellees.

 8 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
 9 Reginald C. Woodard, Workers’ Compensation Judge

10 Garcia Law Office
11 Narciso Garcia, Jr.
12 Albuquerque, NM

13 for Appellant

14   Miller Stratvert P.A.
15   Timothy R. Briggs
16   Dan A. Akenhead
17   Albuquerque, NM

18 for Appellees

19                                 MEMORANDUM OPINION

20 ATTREP, Judge.
 1   {1}   Worker Jose Carbajal injured his back in a work-related accident in 2009.

 2 Worker, Employer Plaza Lathing and Plastering, LLC, and Insurer New Mexico

 3 Mutual Casualty Company entered into a settlement agreement in 2010 (the

 4 Settlement Agreement) that, among other things, entitled Worker to certain medical

 5 benefits. In 2015, after an independent medical examination (IME), the Workers’

 6 Compensation Judge (the WCJ) entered an order (the 2015 Order) denying Worker’s

 7 claim for further medical benefits under the Workers’ Compensation Act (the Act),

 8 NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017), as not reasonable,

 9 necessary, or causally related to Worker’s accident. Worker appeals the WCJ’s 2015

10 Order and argues that the WCJ erred on two grounds: (1) by permitting

11 Employer/Insurer to impermissibly modify the Settlement Agreement, and (2) by

12 finding that Worker’s ongoing medical care was not reasonable, necessary, or causally

13 related to his work accident. With respect to the first claim, we hold that

14 Employer/Insurer did not modify the Settlement Agreement. With respect to the

15 second claim, we hold that the WCJ’s findings are supported by substantial evidence.

16 We, therefore, affirm the WCJ’s 2015 Order.

17 BACKGROUND

18   {2}   Worker injured his back on January 6, 2009, while working for Employer. The

19 parties settled Worker’s workers’ compensation claim against Employer/Insurer, and

20 on December 15, 2010, the WCJ entered an order (the 2010 Order) approving the

                                             2
 1 Settlement Agreement, pursuant to NMSA 1978, Section 52-5-12(D) (2009). The

 2 Settlement Agreement specified that Employer/Insurer pay Worker a lump sum of

 3 $32,500 in exchange for his waiver of any and all past, present, and future disability

 4 benefits. The Settlement Agreement and the 2010 Order provided that Worker was

 5 entitled to future medical benefits that were reasonable, necessary, and causally

 6 related to his work accident, and that the issue of medical benefits remain open

 7 pursuant to the Act. The Settlement Agreement further provided that “Worker has had

 8 long standing physical problems unrelated to his alleged work related accident [and

 9 that a]ccording to the physicians who have treated . . . Worker subsequent to his

10 alleged work related accident of January [6], 2009, Worker has been diagnosed as

11 having suffered an aggravation of his pre-existing problems.”

12   {3}   In 2013, Employer/Insurer filed an application for an IME “[t]o address

13 [Worker’s] utilization of medical care.” The WCJ granted the application, and Worker

14 underwent an IME. The IME panel, Doctors Juliana Garcia and Mark Crawford,

15 concluded that the January 6, 2009 accident “exacerbated” Worker’s “pre-existing

16 chronic low back pain,” which had since “returned to baseline.” The IME panel found

17 that Worker’s ongoing medical care was not reasonable, necessary, or causally related

18 to his 2009 work accident. Following the IME report, Employer/Insurer notified

19 Worker it was no longer responsible for his ongoing medical treatment. Worker then

20 filed a complaint seeking, in relevant part, continuing medical care.

                                             3
 1   {4}   The WCJ held a hearing and considered the deposition testimony of the IME

 2 doctors and Worker’s treating physician, as well as Worker’s testimony. After the

 3 hearing, the WCJ determined that Worker was not entitled to further medical care for

 4 his complaints of back and lower extremity pain. The WCJ specifically found that

 5 Worker (1) had “a long history of degenerative changes and pain in his back” and

 6 “pre-existing lower back pain” before his January 6, 2009 accident, and (2) did not

 7 require any medical treatment that was “causally connected to or reasonably and

 8 necessarily related to” the injuries sustained from the work accident. Accordingly, the

 9 WCJ entered the 2015 Order dismissing Worker’s claim for medical benefits with

10 prejudice. Worker timely filed his notice of appeal from the 2015 Order.

11 DISCUSSION

12 I.      Employer/Insurer Has Not Modified the Settlement Agreement

13   {5}   Worker contends that the parties entered into a binding agreement that he

14 suffered a permanent aggravation of a pre-existing back condition, and that he was

15 entitled to reasonable and necessary medical care for the aggravation. Worker argues

16 that Employer/Insurer impermissibly modified the Settlement Agreement by later

17 maintaining that Worker’s condition returned to baseline and by discontinuing

18 medical care.

19 A.      Judicial Estoppel and Law of the Case Do Not Apply



                                              4
 1   {6}   Worker invokes the doctrines of judicial estoppel and law-of-the-case to argue

 2 that Employer/Insurer is precluded from changing the position it purportedly took in

 3 the Settlement Agreement—i.e., that Worker suffered from a permanent aggravation

 4 of a pre-existing back condition. Employer/Insurer argues that Worker failed to

 5 preserve his judicial estoppel and law-of-the-case arguments. We agree. Worker did

 6 not argue the applicability of these doctrines to the WCJ and raises them for the first

 7 time on appeal. As such, these arguments are not preserved. See Rule 12-321(A)

 8 NMRA; Wolfley v. Real Estate Comm’n, 1983-NMSC-064, ¶ 5, 100 N.M. 187, 668

 9 P.2d 303 (“[I]ssues not raised in administrative proceedings will not be considered for

10 the first time on appeal.”); Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 20, 106

11 N.M. 492, 745 P.2d 717 (“To preserve an issue for review on appeal, it must appear

12 that appellant fairly invoked a ruling of the [lower] court on the same grounds argued

13 in the appellate court.”).

14   {7}   Regardless, the doctrines of judicial estoppel and law-of-the-case are

15 inapplicable here. Judicial estoppel does not apply where, as here, the parties entered

16 into a settlement agreement and no judgment was entered in favor of the party against

17 whom estoppel is asserted. See Sw. Steel Coil, Inc. v. Redwood Fire & Cas. Ins. Co.,

18 2006-NMCA-151, ¶ 19, 140 N.M. 720, 148 P.3d 806. Likewise, because there was a

19 settlement, the WCJ did not decide any pertinent issue of law that should be given

20 preclusive effect under the law-of-the-case doctrine. See Cordova v. Larsen, 2004-

                                              5
 1 NMCA-087, ¶ 10, 136 N.M. 87, 94 P.3d 830 (“Under the law of the case doctrine, a

 2 decision on an issue of law made at one stage of a case becomes a binding precedent

 3 in successive stages of the same litigation.” (internal quotation marks and citation

 4 omitted)); cf. State ex rel. Martinez v. Kerr-McGee Corp., 1995-NMCA-041, ¶ 14,

 5 120 N.M. 118, 898 P.2d 1256 (noting that “settlements and consent judgments are not

 6 normally considered fertile ground for issue preclusion”).

 7 B.      Worker Preserved His Settlement Modification Argument

 8   {8}   Even though Worker did not preserve his judicial estoppel and law-of-the-case

 9 arguments for review on appeal, he did preserve his broader argument that

10 Employer/Insurer impermissibly modified the Settlement Agreement. Worker invoked

11 a ruling by the WCJ on the same settlement modification issue he now asserts on

12 appeal. In particular, whether Employer/Insurer sought to modify the Settlement

13 Agreement was a disputed issue in the pretrial order. Worker also requested that the

14 WCJ enter a finding that “[t]he parties entered into a binding settlement agreement

15 establishing that [W]orker suffered an aggravation of his pre-existing condition[, and

16 t]he parties further agreed that Worker was entitled to continuing reasonable and

17 necessary medical care [f]or this aggravation.” Worker “fairly invoked” a ruling by

18 the WCJ on the settlement agreement modification issue and, thus, successfully

19 preserved this issue for appeal. See Rule 12-321(A); Wolfley, 1983-NMSC-064, ¶ 5;

20 Woolwine, 1987-NMCA-133, ¶ 20.

                                             6
 1 C.       The Settlement Agreement Was Not Modified

 2   {9}    Worker and Employer/Insurer agreed to a binding contract in the form of a

 3 Section 52-5-12(D) lump-sum settlement agreement. Worker contends that the

 4 Settlement Agreement included binding stipulations that he suffered a permanent

 5 aggravation of a pre-existing chronic back condition and that he was entitled to

 6 ongoing medical care for the aggravation. As such, Worker argues that

 7 Employer/Insurer impermissibly modified the Settlement Agreement by maintaining

 8 that Worker’s condition returned to baseline and by subsequently discontinuing

 9 Worker’s medical benefits. Employer/Insurer argues that it properly discontinued

10 medical benefits, pursuant to the terms of the Settlement Agreement and 2010 Order

11 approving it, after the IME panel determined Worker’s medical treatment was not

12 reasonable, necessary, or causally connected to his work accident. “We review a

13 [lower] court’s interpretation of an unambiguous contract de novo.” Smith & Marrs,

14 Inc. v. Osborn, 2008-NMCA-043, ¶ 10, 143 N.M. 684, 180 P.3d 1183 (internal

15 quotation marks and citation omitted); see Lenscrafters, Inc. v. Kehoe, 2012-NMSC-

16 020, ¶ 18, 282 P.3d 758 (recognizing that “a contract is deemed ambiguous only if it

17 is reasonably and fairly susceptible of different constructions” (alteration, internal

18 quotation marks, and citation omitted)).

19   {10}   Contrary to Worker’s contentions, the Settlement Agreement did not make a

20 binding determination that his injuries were a “permanent aggravation” of his pre-

                                              7
 1 existing back condition. Instead, the Settlement Agreement only recited that,

 2 according to physicians who treated him after the January 6, 2009 accident, “Worker

 3 ha[d] been diagnosed as having suffered an aggravation of his pre-existing [back]

 4 problems.” The WCJ correctly determined that “[t]he mere recitation as to Worker’s

 5 perceived medical status on [the date of the settlement] does not prohibit the parties

 6 from inquiring into [Worker’s] medical status at a later date.” The Settlement

 7 Agreement and the 2010 Order additionally made plain that Worker was only entitled

 8 to “reasonable and necessary medical care relating to [his] alleged [work] accident . . .

 9 pursuant to the . . . Act.” The 2010 Order specifically subjected both parties to NMSA

10 1978, Section 52-1-51 (2005, amended 2013), which provides that contested medical

11 issues be resolved by way of an IME. As such, the WCJ was correct in interpreting the

12 Settlement Agreement as leaving “medical benefits open for reasonable and necessary

13 medical care, causally related to Worker’s January 6, 2009 accident.”

14   {11}   Given the plain terms of the Settlement Agreement and the 2010 Order,

15 Employer/Insurer was within its rights to contest Worker’s ongoing medical treatment,

16 request an IME, and refuse to pay medical benefits that were not reasonable,

17 necessary, or causally connected to the work accident. Worker’s argument that

18 Employer/Insurer modified the Settlement Agreement is without merit.

19 II.      Substantial Evidence Supports the WCJ’s Findings That Worker’s
20          Medical Care Was Not Reasonable, Necessary, or Causally Related to His
21          Work Accident

                                               8
 1   {12}   Worker next argues that there is insufficient evidence to support the WCJ’s

 2 findings that Worker is not entitled to further medical care. Under the Act, Worker has

 3 the burden to establish that the requested medical care is reasonable, necessary, and

 4 causally connected to the work accident. See §§ 52-1-28(B), -49(A); Davis v. Los

 5 Alamos Nat’l Lab., 1989-NMCA-023, ¶ 4, 108 N.M. 587, 775 P.2d 1304 (“Claimant

 6 has the burden of showing that the [medical] expenses were both reasonable and

 7 necessary.”); Hernandez v. Mead Foods, Inc., 1986-NMCA-020, ¶ 23, 104 N.M. 67,

 8 716 P.2d 645 (holding that “the medical benefits for which recovery is sought must

 9 be incidental to and a concomitant part of the injury sustained in a work-related

10 accident”).

11   {13}   We review the WCJ’s 2015 Order “under a whole record standard of review.”

12 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926.

13 “Whole record review contemplates a canvass by the reviewing court of all the

14 evidence bearing on a finding or decision, favorable and unfavorable, in order to

15 determine if there is substantial evidence to support the result.” Leonard v. Payday

16 Prof’l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177 (alteration, internal

17 quotation marks, and citation omitted). “Substantial evidence on the record as a whole

18 is evidence demonstrating the reasonableness of an agency’s decision, and we neither

19 reweigh the evidence nor replace the fact finder’s conclusions with our own.” Dewitt

20 v. Rent-A-Ctr., Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341 (citation

                                              9
 1 omitted). “We view the evidence in the light most favorable to the decision[.]” Id.

 2 “We will affirm the agency’s decision if, after taking the entire record into

 3 consideration, there is evidence for a reasonable mind to accept as adequate to support

 4 the conclusion reached.” Leonard, 2007-NMCA-128, ¶ 10 (internal quotation marks

 5 and citation omitted).

 6   {14}   Worker argues that the WCJ’s decision “rests entirely on” the conclusions in

 7 the IME report, which Worker contends were based largely on a dating error

 8 contained within his medical records. Worker’s argument is without merit. First,

 9 Worker ignores evidence in the record that, when made aware of these dating

10 inconsistencies, both IME panel doctors testified that these errors did not change their

11 medical opinions that Worker’s medical care was not reasonable, necessary, or

12 causally related to his work accident. Second, Worker ignores the testimony of his

13 own physician, who agreed with the IME panel that Worker’s current need for

14 medical care was not causally connected to the work accident. The WCJ was bound

15 by this uncontroverted expert medical testimony. See § 52-1-28(B); Romero v. City

16 of Santa Fe, 2006-NMCA-055, ¶ 26, 139 N.M. 440, 134 P.3d 131 (“[T]he

17 uncontroverted medical evidence rule . . . dictates that where expert medical testimony

18 regarding the causal connection between disability and accident in a workers’

19 compensation case is uncontroverted, that testimony is binding on the trier of fact.”

20 (internal quotation marks and citation omitted)). Finally, expert testimony from the

                                              10
 1 IME panel doctors supports the WCJ’s findings that Worker failed to meet his burden

 2 of proof on the reasonableness and necessity of his medical care. In particular, the

 3 IME panel doctors opined that Worker’s back condition had returned to baseline and,

 4 as such, no medical treatment was reasonably and necessarily related to his work

 5 accident.

 6   {15}   Upon a whole record review, we conclude that substantial evidence supports

 7 the WCJ’s determination that Worker is not entitled to further medical care.

 8 CONCLUSION

 9   {16}   For the foregoing reasons, we affirm the WCJ’s 2015 Order.

10   {17}   IT IS SO ORDERED.


11                                        __________________________________
12                                        JENNIFER L. ATTREP, Judge

13 WE CONCUR:



14 _________________________________
15 J. MILES HANISEE, Judge



16 _________________________________
17 EMIL J. KIEHNE, Judge




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