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

 2 ANTHONY SANCHEZ,

 3          Worker-Appellant,

 4 v.                                                                            No. A-1-CA-36812

 5 SMITH’S FOOD AND DRUG and
 6 SEDGWICK CLAIMS MANAGEMENT
 7 SERVICES,

 8          Employer/Insurer-Appellees.

 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
10 Tony Couture, Administrative Hearing Officer

11 Michael J. Doyle
12 Los Lunas, NM

13 for Appellant

14 Max A. Jones
15 Albuquerque, NM

16 for Appellees

17                                 MEMORANDUM OPINION

18 HANISEE, Judge.
 1   {1}   Worker has appealed from the workers compensation judge (WCJ’s)

 2 compensation order. Unpersuaded that his docketing statement demonstrated error,

 3 we issued a notice of proposed summary disposition, proposing to affirm. Worker has

 4 responded to our notice with a memorandum in opposition, which we have duly

 5 considered. We remain unpersuaded and affirm.

 6   {2}   Worker’s response abandons two issues raised in his docketing statement. [MIO

 7 7] He pursues his contentions that (1) the WCJ wrongfully interpreted the American

 8 Medical Association (AMA) Guides in favoring one doctor’s impairment rating over

 9 the other’s, [MIO 3-6] and (2) the WCJ erred by ruling that the statute of limitations

10 had run on his claim for increased impairment value, based on Worker’s assertion that

11 Dr. Legant’s impairment rating assigned on April 16, 2013, was incorrectly calculated.

12 [MIO 6-7] We do not reiterate our full proposed analysis here and instead focus on the

13 arguments made in response to our proposals.

14 Impairment Rating

15   {3}   Worker contends that our notice mistakenly presumed that he was challenging

16 the WCJ’s credibility determination that favored Dr. Legant and that we mistakenly

17 reviewed for substantial evidence. [MIO 2-3, 6] We disagree that our review was

18 solely based on credibility and substantial evidence. Our notice relied on NMSA 1978,

19 Section 52-1-24(A) (1990), which defines impairment as an “anatomical or functional



                                             2
 1 abnormality existing after the date of maximum medical improvement as determined

 2 by a medically or scientifically demonstrable finding and based upon the most recent

 3 edition of the American [M]edical [A]ssociation’s guide to the evaluation of

 4 permanent impairment or comparable publications of the American [M]edical

 5 [A]ssociation.” We observed that the competing expert opinions did not appear to be

 6 based on the same set of historical facts, including the date of maximum medical

 7 improvement (MMI), which, according to the impairment statute is the relevant date

 8 after which the medical expert is to assess the anatomical or functional abnormality

 9 for impairment. Section 52-1-24(A). [CN 3] The WCJ ruled that the date of MMI used

10 by Dr. Legant was appropriate, because there was no conflicting medical testimony

11 on that matter; thus, no medical testimony supported Dr. Whalen’s—Worker’s

12 witness’s—use of a date that preceded the date of MMI. [RP 347] This presents a

13 mixed question of law and fact, for which we construe the law de novo and review the

14 facts for substantial evidence using the whole record. See Gutierrez v. Intel Corp.,

15 2009-NMCA-106, ¶ 11, 147 N.M. 267, 219 P.3d 524 (explaining the standard of

16 review for factual and legal issues arising under the Workers Compensation Act). In

17 addition, we referred to the WCJ’s assessment of other aspects of Dr. Whalen’s

18 testimony as confused about whether and when he rated Worker’s impairment and his

19 process of arriving at an impairment rating. [CN 3] An expert’s opinion that is not



                                            3
 1 based on all the pertinent underlying facts or is based on incorrect facts can be

 2 rejected. See, e.g., Sanchez v. Zanios Foods, Inc., 2005-NMCA-134, ¶ 11, 138 N.M.

 3 555, 123 P.3d 788 (listing examples of cases in which expert opinions were

 4 scrutinized based on the underlying facts upon which they were formed).

 5   {4}   Although the failure of Dr. Whalen to use the appropriate date of MMI and to

 6 cohesively recall his impairment rating process appear to be sufficient grounds for

 7 rejecting his impairment rating, we also pointed out that the WCJ found Dr. Whalen

 8 far less trained in performing impairment ratings and less reliable as an expert witness.

 9 [CN 3-4] On appeal, we will not disturb a WCJ’s assessments of credentials and of

10 expert analyses where there is support for them in the record, and the assessment of

11 demeanor is outside of our purview on appeal. See, e.g., Gutierrez, 2009-NMCA-106,

12 ¶ 11; Yeager v. St. Vincent Hosp., 1999-NMCA-020, ¶ 13, 126 N.M. 598, 973 P.2d

13 850 (observing that a WCJ may choose between expert’s conflicting opinions of a

14 worker’s impairment rating); see also Wood v. Citizens Standard Life Ins. Co., 1971-

15 NMSC-011, ¶ 16, 82 N.M. 271, 480 P.2d 161 (holding that the trier of facts

16 determines weight and credibility even where the conflicting testimony was given by

17 medical experts).

18   {5}   Also in response to our notice, Worker contends that he is asking this Court to

19 review the substance of the doctor’s opinions and apply the AMA Guides, and he



                                               4
 1 argues that our failure to do so is an abdication of our role and permits an

 2 unconstitutional delegation of legislative authority. [MIO 3-4] Worker does not assert

 3 that insufficient medical opinion testimony was presented to the WCJ for an

 4 assignment of an impairment rating, nor does he contend that the WCJ lacked a right

 5 to choose between the expert’s conflicting impairment ratings. We understand his

 6 issue to contend that our review should be more intensive and include an analysis of

 7 the medical testimony under the AMA Guides. Assuming the AMA Guides were in

 8 the record below, Worker has not provided citations to applicable provisions.

 9 Furthermore, he has not identified the specific reason why the WCJ erred by choosing

10 Dr. Legant’s impairment rating over Dr. Whalen’s and has not demonstrated that the

11 reason involved a nondiscretionary medical or legal decision. Cf. Chavarria v. Basin

12 Moving & Storage, 1999-NMCA-032, ¶¶ 15-19, 22-27, 127 N.M. 67, 976 P.2d 1019

13 (engaging in an in-depth analysis of the AMA Guides and the medical testimony and

14 concluding that the WCJ’s assignment of an impairment rating was error to the extent

15 it conflicted with a nondiscretionary clear directive in the AMA Guides or was based

16 on a misapplication of the statute).

17   {6}   Based on what Worker has presented to us, we see no error in the WCJs

18 decision to credit Dr. Legant’s impairment rating.

19 Increased Impairment Value



                                             5
 1   {7}   Last, Worker asserts that our proposed notice was incorrect that the WCJ ruled

 2 that his claim for increased impairment value was moot; he states that the WCJ

 3 ultimately ruled that his claim was barred by the statute of limitations. [MIO 6-7]

 4 Upon review, Worker is correct that the compensation order contains such a

 5 conclusion, [RP 404] despite the WCJ’s memorandum opinion indicating that the

 6 issue was moot. [RP 351] Worker does not, however, address the substance of our

 7 proposed holding and explain why he believes the issue is not moot. We continue to

 8 believe that a ruling that the statute of limitations ran is unnecessary, as recognized

 9 in the WCJ’s memorandum opinion, because the WCJ ruled that Dr. Legant assessed

10 impairment correctly back in April 2013, a ruling we affirm. [RP 396, 404] See Maez

11 v. Riley Indus., 2015-NMCA-049, ¶ 31, 347 P.3d 732 (acknowledging that we will

12 affirm a decision in a workers’ compensation order if it is right for any reason). We

13 see no reason why reliance on this basis for affirmance would be unfair to Worker

14 because he was made of aware of this basis for rejecting his claim for increased

15 impairment value in the WCJ’s memorandum opinion. [RP 351]

16   {8}   For the reasons stated in our notice and in this opinion, we affirm the

17 compensation order.

18   {9}   IT IS SO ORDERED.


19


                                              6
1                             J. MILES HANISEE, Judge
2 WE CONCUR:


3
4 EMIL J. KIEHNE, Judge


5
6 DANIEL J. GALLEGOS, Judge




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