September 24, 2019- Eric Trujillo v. Los Alamos National Laboratory, No. A-1-CA-36227

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
ERIC TRUJILLO,	2
Worker-Appellant,	3
v. 	No. A-1-CA-36227	4
LOS ALAMOS NATIONAL	5
LABORATORY,	6
Employer/Self-Insured/Appellee.	7
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION	8
Leonard J. Padilla, Workers’ Compensation Judge	9
Annie-Laurie Coogan LLC	10
Annie-Laurie Coogan	11
Santa Fe, NM	12
for Appellant	13
Camp Law, LLC	14
Minerva Camp	15
Albuquerque, NM	16
for Appellee	17
MEMORANDUM OPINION	18
IVES, Judge.	19
{1} 	Eric Trujillo (Worker) appeals an order of the Workers’ Compensation	20
Administration (WCA) granting Los Alamos National Laboratory’s (Employer’s)	21
motion to reconsider the date Worker reached maximum medical improvement	22
Court of Appeals of New Mexico
Filed 9/24/2019 9:54 AM

2
(MMI) and consequently decreasing the period of time for which Worker was	1
awarded temporary total disability (TTD) benefits. Worker raises a host of issues on	2
appeal, ranging from the Workers’ Compensation Judge’s (WCJ) authority to	3
reconsider Worker’s MMI date to the credibility of the medical opinions on which	4
the revised MMI conclusion rested. We decline to address many of Worker’s	5
arguments and find no merit in the rest, but reverse nonetheless, concluding that the	6
WCJ failed to act in accordance with our mandate on remand from Worker’s first	7
appeal. We therefore remand for limited further proceedings consistent with this and	8
our prior opinion. Cf. Martinez v. Pojoaque Gaming, Inc., 2011-NMCA-103, ¶¶ 12,	9
18, 150 N.M. 629, 264 P.3d 725 (reversing a WCJ opinion for failing to comply with	10
our mandate despite the worker’s failure to make that argument).	11
BACKGROUND	12
{2} 	On October 8, 2014, the WCJ entered a compensation order in Employer’s	13
favor, concluding that Worker had “fail[ed] to prove . . . that the [workplace]	14
accident of November 30, 2012, caused [his injuries]” and that Worker therefore was	15
not entitled to disability benefits. Although the WCJ’s causation conclusion was	16
dispositive of Worker’s compensation claim, see NMSA 1978, § 52-1-28(A) (1987)	17
(providing that claims are allowed only when a worker suffers “an accidental injury	18
arising out of and in the course of [the worker’s] employment”), the WCJ separately	19

3
concluded—without 	specifying 	the 	relevant 	injuries—that 	Worker 	“ha[d] 	not	1
reached MMI” as of the date of the order’s entry.	2
{3} 	This Court reversed the October 2014 order in Trujillo v. Los Alamos National	3
Laboratory (Trujillo I), 2016-NMCA-041, 368 P.3d 1259, holding that the WCJ’s	4
causation conclusion was not supported by substantial evidence because Worker had	5
proven to a reasonable degree of medical probability that his workplace accident had	6
caused him to suffer cervical, lumbar, thoracic, and bilateral elbow strains. Id. ¶ 46.	7
However, because it was “unclear to us whether [those] injuries [had] resulted in a	8
disability,” id. ¶ 46 n.4, we declined to hold that Worker’s claim was compensable	9
and elected instead to “remand . . . to the [WCA] for additional evaluation of	10
Worker’s entitlement to TTD and medical benefits.” Id. ¶ 47. Our mandate directed	11
the WCJ to conduct “further proceedings consistent with [our] decision.”	12
{4} 	On remand, the WCJ concluded that all four of the injuries covered by our	13
holding in Trujillo I were compensable under the Workers’ Compensation Act in a	14
new compensation order entered on July 18, 2016.1 The WCJ further concluded—	15
—that Worker “was not at MMI” as of October 8, 2014. On August 9, 2016,	16
Employer moved for reconsideration of that conclusion and asked the WCJ to	17
conclude instead that Worker had reached MMI on March 1, 2013. As grounds for	18
1 Employer does not challenge the compensability conclusion or any other
conclusion on appeal.

4
its motion, Employer relied on the healthcare provider form letter completed by Dr.	1
Sara Pasqualoni, in which Dr. Pasqualoni opined that Worker had reached MMI “as	2
of March of 2013.” Although Dr. Pasqualoni acknowledged treating Worker for	3
“[c]ontusions [to the] back, neck[,] and upper extremities[ and] cervical, thoracic[,]	4
and lumbar strain[s,]” she based her MMI conclusion solely on Worker’s lumbar	5
strain, noting that “[m]ultiple providers [had] diagnosed [Worker] with lumbar	6
strain” and that her review of medical literature indicated that “[l]umbar sprains and	7
strains typically last [five] days[,]” that “[ninety percent] of lumbar sprains and	8
strains resolve within [six] weeks,” and that “[MMI] is frequently achieved within	9
[ninety] days[.]” The WCJ deferred ruling on Employer’s motion because the	10
evidence “ha[d] not been adequately developed as required by remand from the	11
Court of Appeals[,]” and, believing that an independent medical examination (IME)	12
would “assist . . . in determin[ing the] issues[,]” issued an order compelling Worker	13
to attend an IME conducted by Dr. Paul Legant “to obtain the information	14
requested.”	15
{5} 	Worker moved to clarify the IME order. Although Worker agreed that the	16
order was “an appropriate use of the WCJ’s power,” he contended that the IME could	17
not “be used to change the law of the case.” Worker asserted that both our holding	18
in Trujillo I (that Worker’s workplace accident had caused him to suffer cervical,	19
thoracic, lumbar, and bilateral elbow strains) and the WCJ’s conclusion that Worker	20

5
had not reached MMI as of October 8, 2014, were the law of the case and argued	1
that the WCJ was precluded from modifying the July 18 order’s conclusions on	2
either issue. Worker also asked that Dr. Legant “be provided with the law of the	3
case” and, in a proposed form letter to Dr. Legant, suggested that the parties inform	4
him that (1) “it ha[d] been determined by the [c]ourts that there is a causal	5
relationship between Worker’s accidental fall of November 30, 2012[,] and his	6
cervical, thoracic, lumbar[,] and bilateral elbow strains”; and (2) “Worker was not	7
at MMI on October 8, 2014.” The proposed letter further asked Dr. Legant to opine	8
as to the date on which those four injuries had reached MMI. In response, the WCJ	9
wrote to counsel on November 14, 2016, informing the parties that none of the	10
WCJ’s orders regarding the IME had “suggest[ed], direct[ed,] or order[ed] that any	11
additional information be provided to Dr. Legant other than that contained in [a	12
m]andatory [f]orm [l]etter” and that “[t]he only exception [was] that medical	13
deposition testimony [could] be provided at the parties’ discretion.”	14
{6} 	After Worker attended the IME with Dr. Legant, Employer notified the WCJ	15
that Dr. Legant had completed an IME report, attaching the report to the filed notice.	16
The IME consisted of an inquiry as to Worker’s subjective symptoms; a review of	17
medical records from 1995 to 2016, as well as deposition testimony provided by the	18
parties and Dr. Pasqualoni’s form letter; and a physical examination. In his report,	19
Dr. Legant “agree[d] with Dr. Pasqualoni that [Worker] would have reached MMI	20

6
[on] approximately [March 1, 2013, with] reference [to] the injury of [November 30,	1
2012], and the diagnosis [of] lumbar strain[ and] contusion.” Dr. Legant “also	2
agree[d] with Dr. Pasqualoni’s associated diagnoses” of the injuries caused by	3
Worker’s workplace accident “as noted in her form letter to healthcare provider[,]”	4
including “contusions[ of the] back, neck, and upper extremity (left shoulder in	5
particular) and cervical, thoracic, and lumbar strain[s].”	6
{7} 	The WCJ entered an order granting Employer’s motion to reconsider on	7
December 6, 2016. The WCJ dismissed Worker’s law of the case arguments,	8
reasoning that the law of the case doctrine “is flexible and discretionary, and does	9
not require a [WCJ] to uphold a clearly incorrect decision” and that it “allows, but	10
does not require, [a WCJ] to refuse to consider matters already decided in the case.”	11
Noting that NMSA 1978, Section 52-5-9 (1989) “provides for modification of a	12
compensation order in cases of mistake or inadvertence[,]” the WCJ concluded that	13
the prior order’s MMI conclusion had been “a mistake . . . based on the lack of	14
information concerning MMI presented by the parties at the [f]ormal hearing[.]” The	15
WCJ found that Dr. Legant’s IME report and Dr. Pasqualoni’s form letter provided	16
the information necessary to evaluate Worker’s MMI date, and, on the basis of those	17
documents, concluded that Worker had reached MMI on March 1, 2013. That	18
conclusion is the subject of this appeal.	19

7
DISCUSSION	1
{8} 	Worker broadly asserts that the WCJ erred in reaching a different conclusion	2
as to Worker’s MMI date on remand because (1) the law of the case doctrine and	3
this Court’s opinion in Trujillo I precluded the WCJ from reconsidering Worker’s	4
MMI date; (2) the WCJ’s original conclusion that Worker had not reached MMI as	5
of October 8, 2014, was correct, and the WCJ lacked authority to reconsider	6
Worker’s MMI date under our Rules of Civil Procedure or Section 52-5-9; and (3)	7
the evidence relied upon by the WCJ as the basis for the March 1, 2013, MMI date	8
was either inadmissible or of so little value that it could not support the WCJ’s	9
conclusion that Worker had reached MMI on March 1, 2013.	10
I. 	Standards of Review	11
{9} 	“Whether law of the case applies, as well as how it applies, are [issues] of law	12
subject to de novo review.” State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-	13
NMSC-010, ¶ 20, 145 N.M. 769, 205 P.3d 816. So are the interpretation and	14
applicability of our opinion and mandate in Trujillo I and the WCJ’s compliance	15
with that opinion and mandate. See Martinez, 2011-NMCA-103, ¶ 17 (“We review	16
the question of whether the WCJ has followed its authority on remand de novo, as it	17
involves a question of law.”).	18
{10} 	We likewise review de novo the WCJ’s interpretation of Section 52-5-9(B).	19
Souter v. Ancae Heating & Air Conditioning, 2002-NMCA-078, ¶ 26, 132 N.M. 608,	20

8
52 P.3d 980. However, “[w]hether [a worker] has made a proper showing for	1
modification of a compensation order pursuant to Section 52-5-9 is within the sound	2
discretion of the [WCJ] and [the WCJ’s determination] is not to be reversed absent	3
a showing of abuse of discretion.” Curliss v. B & C Auto Parts, 1993-NMCA-139,	4
¶ 5, 116 N.M. 668, 866 P.2d 396. “[A]buse of discretion in the context of workers’	5
compensation 	cases 	is 	inextricably 	intertwined 	with 	the 	substantial 	evidence	6
standard[,]” id., and we apply whole record review to the WCJ’s determinations	7
under that standard. Trujillo I, 2016-NMCA-041, ¶ 15.	8
{11} 	On whole record review, “we view the evidence in the light most favorable to	9
the agency decision, but may not view favorable evidence with total disregard to	10
contravening evidence.” 	Id. 	(alteration, internal quotation marks, and citation	11
omitted). “After reviewing all the evidence, both favorable and unfavorable, we	12
‘disregard that which has little or no worth’ and then ‘decide if there is substantial	13
evidence in the whole record to support the agency’s finding or decision.’ ” Id.	14
(quoting Tallman v. ABF (Arkansas Best Freight), 1988-NMCA-091, ¶¶ 9-10, 108	15
N.M. 124, 767 P.2d 363. “[W]hether a finding is supported by substantial evidence	16
is a question of law, not of fact.” Martinez v. Sw. Landfills, Inc., 1993-NMCA-020,	17
¶ 14, 115 N.M. 181, 848 P.2d 1108.	18

9
II. 	Preclusion	1
{12} 	The law of the case doctrine did not preclude reevaluation of Worker’s MMI	2
date on remand. See Taylor v. Allegretto, 1994-NMSC-081, ¶ 7, 118 N.M. 85, 879	3
P.2d 86 (holding that an issue was not precluded by the law of the case doctrine	4
because a ruling on the issue was “not necessary to the disposition of the case” or	5
“invoked by the parties” on the first appeal). The WCJ ruled against Worker on the	6
issue of causation in the October 2014 order, concluding that Worker had failed to	7
prove that his workplace accident had caused any of his diagnosed injuries, and the	8
conclusion that Worker had not reached MMI was thus superfluous. Worker could	9
not have reached MMI for accidental injuries that he had not sustained, and our	10
reversal of the October 2014 order did not act to apply an MMI date disconnected	11
from any particular injury to the four injuries newly held to be causally related to	12
Worker’s workplace accident. Cf. Smith v. Cutler Repaving, 1999-NMCA-030, ¶ 10,	13
126 N.M. 725, 974 P.2d 1182 (“We address each MMI finding separately.”).	14
{13} 	Moreover, our opinion in Trujillo I did not address Worker’s entitlement to	15
disability benefits. Instead, we expressly stated that it was “unclear” to us whether	16
Worker’s injuries had resulted in a disability and directed the WCJ to further	17
“evaluat[e] Worker’s entitlement to TTD and medical benefits in light of [our]	18
opinion.” 2016-NMCA-041, ¶¶ 46 n.4, 47. Further evaluation necessarily involved	19
an assessment of Worker’s MMI date because that date controlled the amount of	20

10
temporary disability benefits to which Worker would be entitled if he successfully	1
proved that his injuries had resulted in a disability. See NMSA 1978, § 52-1-25.1(A)	2
(2017) (defining “temporary total disability” as a worker’s “inability . . . to perform	3
the duties of [the worker’s] employment prior to the date of the worker’s maximum	4
medical improvement”).2 The WCJ thus did not impermissibly “enlarge or alter the	5
issues presented in [our] mandate[,]” UU Bar Ranch Ltd. P’ship, 2009-NMSC-010,	6
¶ 22, in reaching a conclusion on the MMI issue different from the one reached in	7
the October 2014 order.	8
III. 	Authority to Modify MMI Date	9
{14} 	Next, the WCJ’s decision to reconsider Worker’s MMI date was within the	10
WCJ’s authority to modify a prior compensation order under Section 52-5-9, which	11
2Worker asserts that Trujillo I is wrong insofar as it implies that “it is unclear
. . . whether Worker’s injuries resulted in TTD prior to October 8, 2014” because,
“[b]y operation of law, if a [w]orker [(1)] suffers from a work-related injury [that]
requires his removal from the work force . . . [, (2)] is not at MMI[,] and [(3)] has
not been rehired by anyone in any capacity[, the worker] is entitled to TTD.” That
argument is based on a misreading of our opinion. Nowhere in Trujillo I did we
imply that it was unclear whether Worker would be entitled to TTD benefits if he
was statutorily eligible for them. Instead, what was “unclear” to us was whether
Worker’s injuries had resulted in a disability—i.e. whether (as Worker puts it) they
“require[d] his removal from the work force”—in the first place. Trujillo I, 2016-
NMCA-041, ¶ 46 n.4 (citing Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015,
¶ 22, 137 N.M. 497, 113 P.3d 320). Trujillo I thus did not foreclose the possibility
that the WCJ would conclude on remand that Worker’s injuries had not resulted in
a disability and that Worker consequently was not entitled to TTD benefits at all.

11
provides that a WCJ, upon application and after a hearing, may “modify any previous	1
decision, award or action” upon grounds including “mistake, inadvertence, surprise	2
or excusable neglect[.]” Section 52-5-9(B)(2) authorizes WCJs to modify any	3
portion of a prior compensation order based on a mistake of law, see Lucero v.	4
Yellow Freight Sys., Inc., 1991-NMCA-087, ¶¶ 13-21, 112 N.M. 662, 818 P.2d 863	5
see also Deerman v. Bd. of Cty. Comm’rs of Cty. of Dona Ana, 1993-NMCA-123,	6
¶ 14, 116 N.M. 501, 864 P.2d 317, although we are “reluctant” to allow parties to	7
use the statute as a means of “circumvent[ing] the time limits for an appeal.” Lucero,	8
1991-NMCA-087, ¶ 17. In this case, Employer moved for reconsideration of the July	9
18, 2016, order on August 9, 2016, within the thirty-day time limit for filing an	10
appeal set by our Rules of Appellate Procedure, see Rule 12-601 NMRA; see also	11
NMSA 1978, § 52-5-8 (1989), 3 and Section 52-5-9 thus authorized the WCJ to	12
modify the July 18 order’s conclusion regarding MMI if that conclusion was	13
premised on a mistake of law.	14
3Worker argues that Section 52-5-9 did not empower the WCJ to reconsider
the date Worker reached MMI because Employer “did not file a [m]otion for
[r]econsideration, appeal[,] or cross[-]appeal of any of the WCJ’s [f]indings or
[c]onclusions in the October 8, 2014[, compensation order].” We disagree. This
Court reversed the October 2014 compensation order in Trujillo I. The motion to
reconsider that convinced the WCJ to alter its MMI conclusion was thus based not
on the October 2014 compensation order, but on the July 18, 2016, compensation
order entered following remand.

12
{15} 	Worker argues that the WCJ did not make a mistake in concluding that MMI	1
had not been reached by October 2014 because “the uncontroverted medical	2
evidence and testimony [at the time of the formal hearing] in June of 2014[] was that	3
Worker was not at [MMI] for his injuries.” In other words, Worker argues that,	4
because there was evidence indicating that he was not at MMI and “no medical	5
testimony . . . that [he] was at MMI,” the WCJ’s July 2016 determination that Worker	6
had not reached MMI by October 2014 was correct, and thus could not be mistaken.	7
We disagree for two reasons. First, Worker’s argument is based on the assumption	8
that Employer bore the burden of proving that Worker had reached MMI at the time	9
of trial. It did not. To the contrary, under Section 52-1-25.1(A), a worker seeking to	10
obtain TTD benefits bears the burden of proving that the worker has not reached	11
MMI. See Baca v. Bueno Foods, 1988-NMCA-112, ¶¶ 17-20, 108 N.M. 98, 766 P.2d	12
1332. It was consequently Worker’s burden to prove that he had not reached MMI	13
by October 14, 2014, rather than Employer’s burden to prove that Worker had	14
reached MMI before then, and the absence of evidence showing that Worker had	15
reached MMI by October 14, 2014, is immaterial.	16
{16} 	Second, none of the evidence cited by Worker in support of his argument—	17
the deposition testimony of Drs. Pasqualoni, Elliot, and Schwartz—was substantial	18
evidence that Worker’s cervical, lumbar, thoracic, and bilateral elbow strains were	19

13
not at MMI as of October 8, 2014.4 Dr. Pasqualoni testified that she had not placed	1
Worker at MMI at the time of a visit on February 6, 2013, but that she would defer	2
to Dr. Elliot’s opinion on the issue. Dr. Elliot testified in a January 30, 2014,	3
deposition that Worker had not been at MMI on January 9, 2013, the only time she	4
had ever treated him. She reaffirmed that opinion in a second deposition taken four	5
months later without having treated Worker again in the interim. However, during	6
her first deposition, Dr. Elliot also testified that she had not come to any opinions	7
regarding Worker’s MMI date at the time of Worker’s visit, a statement that, in light	8
of her other testimony, could only mean that she had no opinion on what future date	9
Worker might reach MMI. Dr. Elliot’s testimony is thus not evidence that Worker’s	10
MMI date was any later than January 9, 2013.	11
{17} 	The cited portions of Dr. Schwartz’s testimony appear at first glance to	12
support a later MMI date than the testimony of Drs. Pasqualoni and Elliot, but closer	13
examination reveals that her testimony was equivocal and that Dr. Schwartz’s	14
opinion as to MMI was based on incomplete information. In her May 20, 2014,	15
deposition, Dr. Schwartz testified that, at the time of her first office visit with Worker	16
4Worker repeatedly alleges in his briefing that, because Employer engaged in
unfair claims processing or participated in bad faith in the proceedings below, he
was denied treatment for his injuries and unable to obtain evidence to support his
compensation claim. These allegations have little to do with the issues before us in
this appeal. Our opinion does not prevent Worker from pursuing any bad faith claims
he may have. See generally NMSA 1978, § 52-1-28.1 (1990).

14
in March 2014, she had “had a general sense” and had “even said” that Worker “was	1
likely at MMI.” However, because she had not obtained “complete records” and had	2
no “history with [Worker as] a patient” at the time of Worker’s first visit, she	3
testified that she “wouldn’t have said that [Worker was] absolutely at MMI” and	4
that, “if [she] had to . . . say on the record, [she] would say [Worker] was not at MMI	5
because . . . , in [her] opinion at [the time of the visit], [he] hadn’t really had the	6
benefit of . . . much treatment.” Dr. Schwartz had seen Worker again in May 2014,	7
and she testified that, although she had not placed Worker at MMI during that visit,	8
a report she completed after the visit would “reflect that [she] thought [Worker]	9
would be at a point of MMI in the next three months.” Yet, Dr. Schwartz also	10
testified that she had based that opinion on Worker’s reporting of the treatment he	11
had undergone before May 2014, which “was kind of foggy[,]” and that she had	12
consequently been unaware that Worker had already completed eight sessions of	13
physical therapy for his injuries.	14
{18} 	Moreover, Dr. Schwartz’s testimony regarding MMI was based on her	15
professional opinion that Worker had aggravated an “inflammatory degenerative	16
disease disc issue” as a result of his workplace accident. That testimony runs directly	17
counter to Trujillo I, in which we affirmed the WCJ’s conclusion that Worker had	18
failed to prove that his workplace accident had caused an aggravation of a	19
preexisting back injury. 2016-NMCA-041, ¶¶ 36, 44. As a matter of law, the only	20

15
injuries for which an MMI date was relevant after our remand were Worker’s	1
cervical, lumbar, thoracic, and bilateral elbow strains, and Dr. Schwartz’s conclusion	2
that Worker had not reached MMI for an aggravation of a preexisting injury thus	3
had no bearing on the MMI issues before the WCJ in July 2016. Because it was	4
equivocal, based on incomplete information, and premised on an irrelevant injury,	5
Dr. Schwartz’s testimony was of little worth in determining Worker’s MMI date.	6
{19} 	Based on our review of the record, substantial evidence did not support the	7
WCJ’s conclusion that Worker had not reached MMI by October 8, 2014. We	8
therefore agree with the WCJ that the July 18, 2016, order’s conclusion as to	9
Worker’s MMI date was “mistake[nly] . . . based on [a] lack of information,” and	10
conclude that it was not an abuse of discretion for the WCJ to correct that error by	11
applying the proper standard to the evidence. The question thus becomes whether	12
the WCJ erred in reaching its revised conclusion that Worker had reached MMI by	13
March 1, 2013, an issue to which we now turn.	14
IV. 	The March 1, 2013, MMI Date	15
{20} 	Worker’s final argument is that it was error for the WCJ to conclude that	16
Worker had reached MMI for all of his injuries on March 1, 2013, on the basis of	17
Dr. Pasqualoni’s form letter and Dr. Legant’s IME report. Worker contends the form	18
letter could not support the modified MMI date because Dr. Pasqualoni (1) was no	19
longer Worker’s authorized healthcare provider at the time she completed the form	20

16
letter, having previously referred Worker to Dr. Elliot; (2) did not perform a physical	1
examination of Worker prior to completing the form letter; (3) is employed by	2
Employer and consequently has a strong bias against Worker; (4) treats only	3
Employer’s employees and is not qualified or competent to opine on MMI; (5)	4
determined Worker’s MMI date following a six-month reevaluation of Worker	5
pursuant to NMSA 1978, Section 52-1-51(D) (2013), which Worker contends was	6
“an inappropriate instrument” for determining MMI; and (6) contradicted her	7
previous testimony in arriving at the March 1, 2013, MMI date.	8
{21} 	We decline to address any of these arguments. The sole injury for which an	9
MMI date was addressed in Dr. Pasqualoni’s form letter was Worker’s lumbar strain.	10
Dr. Legant also addressed Worker’s lumbar strain in his IME report, and our review	11
of the report indicates that it constituted substantial evidence of the March 1, 2013,	12
MMI date for that injury, as well as for Worker’s cervical and thoracic strains. The	13
report gives us no basis for concluding that Dr. Legant reached anything other than	14
an independent conclusion as to Worker’s MMI date, and Worker does not argue	15
otherwise.	16
{22} 	Worker does argue, however, that the report was not “credible evidence” that	17
Worker had reached MMI by March 1, 2013, because (1) the report was inadmissible	18
hearsay under our decision in Valenzuela v. A.S. Horner, Inc., 2016-NMCA-031,	19
¶ 9, 367 P.3d 901, or principles of due process; and (2) Worker was not permitted to	20

17
provide Dr. Legant with “questions from counsel, the law of the case[, or] a proper	1
foundation.” We do not reach Worker’s hearsay argument because Worker has failed	2
to support it with any record citation showing that he preserved the issue below. See	3
Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M.	4
26, 106 P.3d 1273 (“[O]n appeal, [a] party must specifically point out where, in the	5
record, the party invoked the [lower] court’s ruling on [an] issue. Absent that citation	6
to the record or any obvious preservation, we will not consider the issue.” (emphasis	7
added)).	8
{23} 	We disagree with Worker’s second argument, which seems to be that the IME	9
report was not substantial evidence of Worker’s MMI date because the WCJ	10
restricted the information that Worker could provide Dr. Legant. We fail to see how	11
Worker’s inability to provide Dr. Legant with our legal conclusions in Trujillo I (or	12
with the incorrect assertion that we had determined that Worker was not at MMI on	13
October 8, 2014) affects in any way the validity of Dr. Legant’s medical opinion as	14
to the date Worker reached MMI. Nor do we believe that counsel’s asserted inability	15
to ask Dr. Legant unspecified questions detracts from the evidentiary value of that	16
opinion. And, although Worker argues that Dr. Legant was not provided with a	17
“proper foundation” before he completed his IME report, he does not support this	18
contention with any showing that the medical history Dr. Legant reviewed was	19

18
incomplete, and we therefore decline to review the argument. See Headley v.	1
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.	2
{24} 	We nevertheless hold that the WCJ erred in concluding that Worker reached	3
MMI for his injuries on March 1, 2013, because the process by which the WCJ made	4
that determination was inconsistent with our opinion and mandate in Trujillo I. See	5
Martinez, 2011-NMCA-103, ¶ 17 (“It is well settled that the duty of a lower court	6
on remand is to comply with the mandate of the appellate court, and to obey the	7
directions therein without variation.” (alteration, internal quotation marks, and	8
citation omitted)); see also Weaver v. Weaver, 1983-NMSC-063, ¶ 3, 100 N.M. 165,	9
667 P.2d 970 (“Where the mandate directs that . . . a designated course be pursued,	10
the [decision-maker on remand] must yield obedience to the directions given.”	11
(emphasis, internal quotation marks, and citation omitted)). Under our mandate, the	12
WCJ was bound to determine issues relating to Worker’s disability “consistent[ly]	13
with [our] decision[,]” in which we held that Worker had proven that his bilateral	14
elbow strain was caused by his workplace accident. As a consequence, the WCJ was	15
not free to disregard Worker’s bilateral elbow strain in adjudicating other aspects of	16
Worker’s claim, including, after their compensability was determined, the date on	17
which Worker reached MMI for all of his injuries. But the record demonstrates that	18
the WCJ did just that in concluding that Worker reached MMI on March 1, 2013.	19

19
{25} 	The WCJ deferred ruling on Employer’s motion for reconsideration and	1
ordered Worker to attend the IME with Dr. Legant in order to obtain evidence that	2
the WCJ believed—and Employer agrees—was needed to permit evaluation of	3
Worker’s MMI date. Worker then attempted to apprise Dr. Legant of the “law of the	4
case” through his motion for clarification and attached form letter, proposing to	5
inform Dr. Legant that this Court had determined that Worker had suffered cervical,	6
lumbar, thoracic, and bilateral elbow strains and to ask for Dr. Legant’s opinion	7
regarding the date on which Worker had reached MMI for those injuries. Worker’s	8
motion incorrectly asserted that the October 8, 2014, MMI date was the law of the	9
case, and it confusingly sought to provide Dr. Legant with our legal conclusions	10
regarding the injuries Worker had proven. Nevertheless, the substance of the motion	11
was clear: Worker was seeking to have the IME address only those issues that	12
Worker understood to have been left open by our opinion in his first appeal. The	13
WCJ denied Worker’s request, a denial reasonably understood as a refusal to permit	14
Worker to specify those injuries for which Dr. Legant’s opinion as to an MMI date	15
was needed. Dr. Legant’s IME report consequently contains no mention of Worker’s	16
bilateral elbow strain, either in its diagnosis of Worker’s accidentally-caused injuries	17
or in its evaluation of Worker’s MMI date. The WCJ nevertheless relied exclusively	18
on that report and on Dr. Pasqualoni’s form letter—which also does not mention	19
Worker’s bilateral elbow strain—in concluding that Worker had reached MMI for	20

20
all of his injuries on March 1, 2013. Because the WCJ failed to comply with our	1
mandate in doing so, it erred as a matter of law, and the December 6, 2016,	2
compensation order must be reversed.	3
CONCLUSION	4
{26} 	We reverse and remand for the sole purpose of determining the date on which	5
Worker’s bilateral elbow strain reached MMI. If necessary, the WCJ may take	6
additional evidence to determine that date. If the evidence demonstrates that	7
Worker’s elbow injury reached MMI on or before March 1, 2013, the WCJ may	8
again conclude that Worker reached MMI for all of his injuries at that time.	9
{27} 	IT IS SO ORDERED.	10
_________________________________	11
ZACHARY A. IVES, Judge	12
WE CONCUR:	13
_________________________________	14
J. MILES HANISEE, Judge	15
_________________________________	16
BRIANA H. ZAMORA, Judge	17