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Vigil v. Gen. Parts

COURT OF APPEALS OF THE STATE OF NEW MEXICO
Apr 28, 2014
NO. 32,647 (N.M. Ct. App. Apr. 28, 2014)

Opinion

NO. 32,647 NO. 32,657

04-28-2014

ASHLEY VIGIL, Worker-Appellant, v. GENERAL PARTS, and NEW HAMPSHIRE INSURANCE COMPANY, c/o GALLAGHER BASSETT, Employer/Insurer-Appellees.

Michael J. Doyle Los Lunas, NM for Appellant Hoffman Kelley, LLP Michelle D. Lopez Albuquerque, NM for Appellee


This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers' Compensation Judge
Michael J. Doyle
Los Lunas, NM
for Appellant Hoffman Kelley, LLP
Michelle D. Lopez
Albuquerque, NM
for Appellee

MEMORANDUM OPINION

GARCIA, Judge.

{1} Worker, Ashley Vigil, suffered a compensable workplace accident on December 6, 2010, and received non-emergency medical care following the accident. She appeals from an order entered by the Workers' Compensation Judge (WCJ) sustaining the objection to her notice of change of healthcare provider (HCP) filed by Employer, General Parts, and its insurer, New Hampshire Insurance Co., c/o Gallagher Bassett (collectively, Employer). Employer concedes that the WCJ erred in concluding that a letter it sent to Worker satisfied its requirement to notify Worker of the HCP selection process. See 11.4.4.11(C)(2)(a) NMAC (6/13/2003). Based on this concession, we must reverse the WCJ's order. We remand for the WCJ to consider in the first instance whether Employer is entitled to relief on alternate grounds and to consider Worker's request for attorney fees and costs.

DISCUSSION

{2} The Workers' Compensation Act provides, in pertinent part, that "[t]he employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection." NMSA 1978, § 52-1-49(B) (1990). The employer is required to communicate its decision with respect to which party will choose the initial HCP to the worker in writing, within a reasonable period of time. See 11.4.4.11(C)(2)(a) NMAC (6/13/2003); see also Howell v. Marto Elec., 2006-NMCA-154, ¶¶ 15, 18, 140 N.M. 737, 148 P.3d 823. If the employer fails to give the required notice, then "the employer shall be presumed, absent other evidence, to have selected the HCP initially." 11.4.4.11(C)(2)(b) NMAC (6/13/2003). {3} The WCJ concluded that Employer satisfied the notice requirement set forth at 11.4.4.11(C)(2)(a) NMAC (6/13/2003) by sending a letter to Worker on April 28, 2011, advising her of the HCP selection process and notifying her that it was exercising its right of second selection. Employer concedes in its answer brief that the letter it sent to Worker "almost certainly qualifies as a 'confirmatory' notice letter, which does not satisfy the [written] notice requirement." See, e.g., Rico v. Montoya, No. 31,127, mem. op. (N.M. Ct. App. June 16, 2011) (non-precedential); Cribbs v. Coastal Chem., No. 29,896, mem. op. (N.M. Ct. App. Sept. 30, 2010) (non-precedential). Employer recognizes that, based on this concession, it is presumed to have selected the initial HCP. {4} Employer asks us to find that it presented sufficient "other evidence" to overcome the presumption set forth at 11.4.4.11(C)(2)(b) NMAC. See 11.4.4.11(C)(2)(b) NMAC (6/13/2003) (stating that "the employer shall be presumed, absent other evidence, to have selected the HCP initially." (emphasis added)). Employer points specifically to evidence that one of Worker's healthcare providers informed Worker of her HCP selection rights in a telephone conversation on January 24, 2011. Whether such evidence is sufficient to overcome the presumption is an interesting question, and one that we have not decided previously. See, e.g., Howell, 2006-NMCA-154, ¶ 33 (holding that "the WCJ erred as a matter of law in concluding that the presumption in 11.4.4.11(C)(2)(b) NMAC [6/13/2003] could be rebutted by evidence that [the e]mployer did not deliberately select [a particular provider] as the initial HCP [and] express[ing] no opinion as to whether [the e]mployer may otherwise rebut the presumption with other evidence. . . ."). {5} Worker argues, however, that this issue was not preserved for our review. Employer claims that it preserved the issue "implicitly rather than [in] a more heavy-handed approach." Employer argues: "While not explicitly citing 11.4.4.11(C)(2)(b) [NMAC 6/13/2003] or directly stating that there was sufficient evidence to rebut the presumption, [Employer]'s closing argument was predicated on establishing that enough testimony was elicited to successfully rebut the presumption." We are not persuaded. {6} In order to preserve an argument for review, "it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court." Woolwine v. Furr's, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717. That is clearly not the case here. The record reflects that Employer argued only that the letter it sent to Worker on April 28, 2011, satisfied the notice requirement; it did not argue that it presented sufficient other evidence to overcome the presumption that it selected the initial HCP. We will not consider this argument for the first time on appeal. See id. ("Where the record fails to indicate that an argument was presented to the court below, unless it is jurisdictional in nature, it will not be considered on appeal."). {7} We thus reverse the WCJ's order. We conclude that the letter Employer sent to Worker did not satisfy the written notice requirement set forth at 11.4.4.11(C)(2)(a) NMAC (6/13/2003). We remand for the WCJ to consider, in the first instance, whether Employer had presented sufficient "other evidence" to overcome the presumption set forth at 11.4.4.11(C)(2)(b) NMAC (6/13/2003). The WCJ must also consider Worker's claim for attorney fees and costs and make appropriate findings and conclusions on that claim.

CONCLUSION

{8} For the foregoing reasons, we reverse the WCJ's order sustaining Employer's objection to Worker's notice of change of HCP. We remand for the WCJ to consider and determine whether Employer had presented sufficient "other evidence" to overcome and rebut the presumption set forth at 11.4.4.11(C)(2)(b) NMAC, and to also consider Worker's request for attorney fees and costs.

{9} IT IS SO ORDERED.

__________

TIMOTHY L. GARCIA, Judge

WE CONCUR:

__________
CYNTHIA A. FRY, Judge
__________
J. MILES HANISEE, Judge


Summaries of

Vigil v. Gen. Parts

COURT OF APPEALS OF THE STATE OF NEW MEXICO
Apr 28, 2014
NO. 32,647 (N.M. Ct. App. Apr. 28, 2014)
Case details for

Vigil v. Gen. Parts

Case Details

Full title:ASHLEY VIGIL, Worker-Appellant, v. GENERAL PARTS, and NEW HAMPSHIRE…

Court:COURT OF APPEALS OF THE STATE OF NEW MEXICO

Date published: Apr 28, 2014

Citations

NO. 32,647 (N.M. Ct. App. Apr. 28, 2014)