December 21, 2009 – Judy Chavez v. City of Albuquerque and Risk Management Division, No. 29,133

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: December 21, 2009
NO. 29,133
JUDY CHAVEZ,
Worker-Appellee,
v.
CITY OF ALBUQUERQUE and
RISK MANAGEMENT DIVISION,
Employer/Insurer-Appellants.
APPEAL FROM WORKERS’ COMPENSATION ADMINISTRATION
Victor S. Lopez, Workers’ Compensation Judge
Bogardus & Scott, P.C.
Robert L. Scott
Albuquerque, NM
for Appellee
Butt Thornton & Baehr, P.C.
Emily A. Franke
Carlos G. Martinez
Albuquerque, NM
for Appellant City of Albuquerque

OPINION
SUTIN, Judge.
{1} 	The City of Albuquerque (Employer) appeals from the Workers’ Compensation
Judge’s (WCJ’s) decision favoring Judy Chavez’s (Worker’s) choice of a health care
provider over Employer’s objection. We reverse.
BACKGROUND
{2} 	After Worker’s injury in February 2005, Employer made the initial choice of
a provider and sent Worker to Employer’s Employee Health Center where Worker
was seen by a physician’s assistant, by Dr. William Wellborn, and by an occupational
therapist. In April 2006, Worker made her own selection of a health care provider,
which was Dr. Ernesto Garza. While under Dr. Garza’s care, Worker also saw her
primary care doctor, and also saw Drs. Atler, Gutierrez, Tiernan (Dr. Garza’s partner),
and Whalen, as well as other doctors for varying medical problems. At some point,
Worker appears to have requested that her care be changed from Dr. Garza to Dr.
Whalen. According to Employer, Worker switched from Dr. Garza to Dr. Whalen.
Employer did not object to Worker seeing any doctor Worker had seen.
{3} 	Dr. Garza died in 2007 and Worker was referred by her attorney or otherwise
chose to see Dr. John Henry Sloan. Employer did not object to this selection. No
formal filing was made with the Workers’ Compensation Administration (WCA) in

2
connection with the change to Dr. Sloan. The change to Dr. Sloan was done with the
cooperation of an adjuster and thus by agreement. Some seventeen months later, in
November 2008, Worker notified Employer that she wanted to change her provider
to Dr. Carlos Esparza. Employer did not agree, and on November 12, 2008, Worker
filed a request to change provider with the WCA. 	That request, signed only by
Worker’s legal counsel, explained that Dr. Sloan’s medical care was inadequate and
unreasonable. 	On November 12, 2008, the WCJ scheduled Worker’s request and
Employer’s objection for a thirty-minute hearing on November 19, 2008. 	After
service and entry of appearance, Employer formally objected on November 20, 2008.
{4} 	On November 20, 2008, the WCJ reset the hearing to occur on November 21,
2008, and again allotted thirty minutes for the hearing. During the hearing on that
date, the WCJ advised the parties on three occasions that time was limited. The WCJ
ended the hearing at approximately the thirty-minute scheduled time. No one testified
at the hearing. The only evidence offered and admitted consisted of three exhibits
offered by Employer, which were a history and physical by Dr. Garza, a progress note
by Dr. Garza, and a history and physical by Dr. Sloan. After listening to counsel, and
close to the thirty-minute hearing deadline, the WCJ stated that he did not have time
to take testimony, and he asked the parties if they wanted an evidentiary hearing
scheduled, but neither party requested a further hearing. Worker’s counsel made an

3
offer of proof, stating that Worker would testify that the treatment she was getting
from Dr. Sloan was not proper and that the doctor was not addressing what she
perceived to be her needs, while at the same time stating that he had no expert
testimony saying that Dr. Sloan’s care was unreasonable. Worker’s counsel further
stated that what the parties had was a case that needed closure. Employer’s counsel
stated that Employer could not add anything given the time allotted for the hearing.
{5} 	At the hearing’s end, Worker’s counsel explained that Worker was in control
of her health care, and just as a doctor can refer a patient to another doctor, Worker’s
choice of a provider was simply a continuation of Worker’s right to control her care.
This drew a response from Employer’s counsel that control did not, as explained in
Chavez v. Intel Corporation, 1998-NMCA-175, 126 N.M. 335, 968 P.2d 1198, allow
a worker who makes the last choice and pick of a provider to thereafter keep on
choosing and picking providers. The WCJ took the matter under advisement and later
entered an order with several findings of fact. 	Among the findings were the
following:
6. 	No party invoked the jurisdiction of the [WCA] to resolve [the]
status of Worker’s right of second selection after Dr. Garza’s
demise; Dr. John Henry Sloan’s care was not a referral from Dr.
Garza.
7. 	The parties essentially “agreed”—whether explicitly or implicitly,
by filing an objection thereto—that Worker could be seen by
various doctors, including Dr. Sloan, Dr. Tiernan, and others;

4
however, 	no 	formal 	written 	agreement 	was 	submitted 	into
evidence 	characterizing 	any 	such 	doctor 	as 	a 	permanent
replacement.
8. 	Worker claims that Dr. Sloan is not providing adequate medical
care to her because he is disorganized and unfocused in his
treatment; also Dr. Sloan has his physician’s assistant or other
inexperienced doctors in his office see Worker, but Dr. Sloan no
long[er] sees . . . Worker.
9. 	Worker claims that, despite returning to work, she continues to
have debilitating and almost continuous pain that is wearing her
down.
10. 	Without addressing the merits of Worker’s claims against Dr.
Sloan, in light of Dr. Garza’s death, the parties’ inability to
continue to agree on a proper choice of health care provider, a
decision must be made regarding Worker’s second selection
rights.
11. 	A party exercising the right of second selection cannot continue
to change doctors at will, and so . . . Worker in [t]his case would
normally be bound by [her] choice of Dr. Garza.
12. 	However, because Dr. Garza has passed, and clearly he cannot
continue to provide reasonable care, Worker should be allowed
some relief, especially where the parties’ interim agreements for
medical care have reached an impasse.
13. 	Worker is hereby allowed to make a formal, second selection of
a treating physician to take over Dr. Garza’s care, pursuant to
[NMSA 1978,] Section 52-1-49 [(1990).]
{6} 	Employer appeals, contending that, having selected Dr. Garza as a second
selection and, upon Dr. Garza’s death, having selected Dr. Sloan, Worker was not
permitted under Section 52-1-49 to select Dr. Esparza to replace Dr. Sloan absent

5
required proof that Dr. Sloan’s care was unreasonable.
DISCUSSION
A. 	Selection of Providers Under Section 52-1-49
{7} 	Upon notice of an accident, an employer must provide the injured worker
reasonable and necessary health care services from a provider in a timely manner.
Section 52-1-49(A). The employer may initially select the provider or may allow the
worker to do so. Section 52-1-49(B). After the initial sixty-day period, the party who
did not make the initial selection may select a provider. Section 52-1-49(C). Unless
the employer and the worker otherwise agree, the party making this second selection
of a provider is to give notice of the selection to the other party. Id. The party making
this second selection does not have to show that the first provider’s care was
unreasonable, Chavez, 1998-NMCA-175, ¶ 6, although the other party can file an
objection to the second selection. Section 52-1-49(D); see Chavez, 1998-NMCA-175,
¶ 7 (stating that “the party making the second selection has unfettered discretion to
choose a new physician,” leaving the burden on the other party to establish that the
care of the provider selected second will be unreasonable). 	In the present case, as
indicated earlier in this opinion, Employer made the initial selection, Worker made the
second selection, and Employer did not object to the second selection, who was Dr.
Garza. 	Nor, when Dr. Garza died, did Employer object to Worker’s choice of a

6
replacement, who was Dr. Sloan.
{8} 	If the worker or the employer disagrees with the choice of a provider by the
other party at any time and they cannot agree otherwise, the party requesting the
change in provider is to submit a request for a change of provider to a WCJ. Section
52-1-49(E). 	That request must contain the reasons for the request, and the person
making the request has the burden of proving to the WCJ that the care being received
is not reasonable. 	Section 52-1-49(F). 	The WCJ is required to render a decision
within seven days of the request. Id. In the present case, Employer disagreed with
Worker’s selection of Dr. Esparza to replace Dr. Sloan, and Worker filed a formal
request with a WCJ to allow a change to Dr. Esparza. It was this request that the WCJ
entertained. 	Worker presented no testimony or documentary evidence. 	Although
given the opportunity to have an evidentiary hearing scheduled, Worker did not
request an evidentiary hearing. Her counsel indicated only that she would testify that
Dr. Sloan’s care was inadequate and did not meet her needs as she perceived them.
In Employer’s view, Worker had had sufficient medical care. The WCJ decided the
issues in Worker’s favor.
B. 	The Selection Issue
{9} 	The WCJ did not decide this case based on the merits of whether Worker could
change to Dr. Esparza because Dr. Sloan’s care was not reasonable. The question on

7
appeal is whether Worker was entitled under Section 52-1-49(E) and (F) to change her
provider to Dr. Esparza despite lack of any evidence showing that Dr. Sloan’s care
was not reasonable. 	This Court reviews workers’ compensation orders using the
whole record standard of review. Tallman v. ABF (Arkansas Best Freight), 108 N.M.
124, 126, 767 P.2d 363, 365 (Ct. App. 1988), modified on other grounds by Delgado
v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. Whole
record review contemplates a canvass by the reviewing court of “all the evidence
bearing on a finding or decision, favorable and unfavorable, in order to determine if
there is substantial evidence to support the result,” and the appellate court is to
“decide[] whether there is evidence for a reasonable mind to accept as adequate to
support the conclusion reached.” Id. at 128, 767 P.2d at 367. This Court reviews the
WCJ’s application of the law to the facts de novo. Tom Growney Equip. Co. v. Jouett,
2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320.
{10} 	Employer takes issue with certain findings of the WCJ. 	First, as an aside,
Employer states that the WCJ made a series of findings despite the absence of any
evidence other than Employer’s three exhibits. 	In regard to certain findings,
Employer argues that nothing in Section 52-1-49 requires WCA jurisdiction to be
formally invoked by filing a document where the employer does not object to a
provider. Employer attacks the WCJ’s finding that Dr. Esparza was a replacement for

8
Dr. Garza, rather than a third selection, because this determination ignored the
evidence that Dr. Sloan in fact replaced Dr. Garza when Worker chose Dr. Sloan and
that Dr. Sloan treated Worker for over a year after Dr. Garza’s death. 	Employer
contends that Dr. Esparza was not a “second selection,” but was, rather, a third
selection, requiring Worker to prove that Dr. Sloan’s care was unreasonable, a burden
Worker failed to sustain.
{11} 	Employer relies on Chavez as authority to support its arguments. Similar to the
present case, in Chavez the employer made the initial selection and the worker made
the second selection. 	1998-NMCA-175, ¶ 2. A year or so later, the worker began
seeing another doctor, apparently with the acquiescence of the employer. Id. Almost
a year after that, the worker gave notice to the employer that she was changing to yet
another health care provider. Id. The employer objected, and in a hearing on the issue
the workers’ compensation judge determined that the employer had not presented any
evidence establishing that the new selection would be unreasonable. Id. ¶ 3.
{12} 	In Chavez, this Court held that the workers’ compensation judge erred in
determining that the worker had an unlimited right to change to the last provider
absent a showing by the worker of unreasonableness in current care. 	Id. ¶ 10. We
explained 	that 	the 	worker’s 	discretion 	in 	selecting 	the 	second 	provider 	was
unrestricted and that the employer did not challenge that second selection or the

9
change a year later from that second selection to a new provider. Id. ¶ 9. It was the
worker’s next, newly desired selection that created the issue, and as to that we
indicated that after the initial and second selections, under Section 52-1-49(F), “any
further change in physicians places the burden of proving that the present physician’s
care is unreasonable upon the party seeking to change physicians.” 	Chavez, 1998-
NMCA-175, ¶ 9. We held that the workers’ compensation judge erred in placing the
burden of proof on the employer, and the worker could not prevail because she failed
to sustain her burden of proof. Id. ¶ 10.
{13} 	We are unable to discern the significance of the WCJ’s findings relating to
formal requirements, as expressed in findings 6 and 7, which discuss invocation of
WCA jurisdiction and the lack of a written agreement characterizing any doctor as a
permanent replacement. The WCJ’s findings and order do not contain any references
to any statutory or other legal requirements in regard to such formalities. Nor do the
findings and order explain how the failure to adhere to any particular formality
supported a determination in Worker’s favor. Worker says nothing on the subjects in
her brief. Also making it difficult for us to understand the legal basis for the WCJ’s
determination in favor of Worker is the absence in the findings and order of any legal
or policy rationale for the finding that Worker’s selection of Dr. Esparza constituted
a second selection under the Section 52-1-49. The WCJ states merely that the

10
selection of Dr. Esparza was Worker’s second selection, and that because Dr. Garza
was no longer able to provide reasonable care “Worker should be allowed some relief,
especially where the parties’ interim agreements for medical care have reached an
impasse.”
{14} 	We do not see how the WCJ’s findings rationally or logically tie in to how the
WCJ arrived at the conclusion that the selection of Dr. Esparza was Worker’s second
selection. Nor do we see how the findings support the WCJ’s ultimate decision in
Worker’s favor. After Dr. Garza’s passing, the parties agreed that Dr. Sloan would
continue with Worker’s care as her provider. The only impasse in this case occurred
when Worker wanted to change from Dr. Sloan to Dr. Esparza. That impasse was
resolvable through adjudication by the WCJ. Worker did not present evidence that
Dr. Sloan’s care was unreasonable, and on appeal Worker does not argue that her offer
of proof was a sufficient substitute for testimony, nor does she argue that the WCJ
unreasonably deprived her of an opportunity to present evidence.
{15} 	Worker attempts to support the WCJ’s ultimate determination in her favor by
characterizing the main issue in the appeal as “whether a WCJ will be given the
discretion needed to effectively decide [health care] provider . . . issues” and by
arguing that the WCJ’s exercise of discretion in health care decisions such as the one
in this case should be left untouched by appellate courts. Worker devotes one page

11
of a total two-page argument to her contention that this Court should give virtually
complete deference to the discretion of the WCJ. 	Worker’s rationale is that “an
injured worker cannot wait for an appellate court to decide [a provider] issue because
most medical decisions . . . need to be decided quickly” and that deferring to the
WCJ’s decision “is the best way to quickly decide these issues.” She argues that the
WCJ as decision-maker is closest to the case and “almost always has the best
perspective on the case.” Therefore, according to Worker, “decisions regarding an
injured worker’s [health care] should remain in the discretion of the WCJ.” Worker
points to different scenarios in which an injured worker may need a new doctor or in
which a new doctor might otherwise be appropriate and argues that those instances
show why the WCJ’s discretion should prevail. Worker states that protection of this
discretion is critical and that “[i]t makes little sense for the Court of Appeals or the
Supreme Court to review each and every decision a WCJ makes regarding [health
care], especially when, in most cases, it will stall the injured worker’s medical
treatment for a year or more.”
{16} 	Worker devotes the second of her two-page argument to an argument that
Chavez does not, as applied to the facts that occurred after Dr. Garza’s death, require
application of Section 52-1-49 and reversal. 	She attempts to distinguish Chavez
arguing that, unlike the present case, in Chavez “the current authorized [provider] had

12
not died and the parties had not informally agreed on another interim doctor to take
over the worker’s care” and that “the worker was arguing for unrestricted power to
choose her doctors.” She argues that she “is not asking for unfettered control over
choosing her doctors.” That Worker’s attempt to distinguish Chavez on its facts bears
no fruit seems all but conceded by Worker in her answer brief where, in concluding
her argument on Chavez, she reverts to her primary argument that the WCJ is to be
affirmed based on the view that this Court should “recognize and protect a WCJ’s
discretion to resolve most [provider] disputes between the parties because a WCJ is,
in most cases, the person best positioned to decide those cases.”
{17} 	We are not persuaded by Worker’s arguments. 	She does not argue how the
WCJ’s findings or the law support the ultimate determination in her favor. She in
effect argues for no appellate review of decisions by workers’ compensation judges
on health care provider issues. She impliedly advocates for an abuse-of-discretion
standard of review. Worker appears to recognize that the WCJ’s determination could
be problematic. At the outset of her answer brief, under her “summary of facts,” she
states that “[r]emand to the WCJ for an evidentiary hearing would probably be
appropriate in this case if the Court is unwilling to affirm.” On whole record review,
we hold that Worker’s selection of Dr. Garza was not her second selection, that she
was required to prove that the care of her current provider, Dr. Sloan, was

13
unreasonable, and she did not sustain that burden.
{18} 	We understand that there will be circumstances in which a worker feels it
necessary to change providers after the initial and second selections of providers have
occurred. 	There is no question that the Workers’ Compensation Act is to “be
interpreted to assure the quick and efficient delivery of indemnity and medical
benefits to injured . . . workers.” NMSA 1978, § 52-5-1 (1990). However, Worker
has not shown why she could not obtain an evidentiary hearing and present testimony
of unreasonable current care and do so within a short time frame. She in no way faults
the WCJ in regard to scheduling. To the extent that the need to change providers is
legitimate but inadequately addressed in the workers’ compensation statutes, we
suggest that the matter should be addressed by the Legislature. Similarly, Worker’s
concern about heath care relief getting bogged down because the appellate process is
available to an employer is not a matter this Court can resolve. Further, if this Court’s
standard of review on the issue at hand should be changed to one of abuse of
discretion, that change must come from our Supreme Court. In the meantime, our
standard of review is full record review as discussed in Tallman combined with de
novo review to the extent we are required to construe workers’ compensation-related
statutes.
CONCLUSION

14
{19} 	We reverse the decision of the WCJ.
{20} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_____________________________
CYNTHIA A. FRY, Chief Judge
______________________________
LINDA M. VANZI, Judge