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Silva v. Denco Sales Co. Inc

Court of Appeals of New Mexico

November 8, 2019

NATASHA SILVA, Worker-Appellant/Cross-Appellee,

          APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Rachel A. Bayless, Workers' Compensation Judge

          Dorato & Weems LLC Derek Weems Albuquerque, NM for Appellant

          O'Brien & Padilla, P.C. Erica R. Neff Albuquerque, NM for Appellees

          New Mexico Workers' Compensation Administration Hector H. Balderas, Attorney General Santa Fe, NM Craig C. Kling, Special Assistant Attorney General Albuquerque, NM for Amicus Curiae



         {¶1} In this Workers' Compensation appeal, we consider what constitutes valid and timely notice of an employer's decision regarding the initial selection of a health care provider (HCP) under New Mexico's Workers' Compensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017), and corresponding regulations, and in the event of untimely notice, whether the employer is deemed to have made the initial HCP selection. We hold that notice is valid when it is sent by a third-party administrator on behalf of an employer, but that the notice in this case was untimely, and as a result, the HCP providing the initial, non-emergency care is the employer's initial HCP selection under Section 52-1-49(B). To the extent the Workers' Compensation Judge's (WCJ) order is to the contrary, it is reversed; and we remand for any further proceedings.


         {¶2} Natasha Silva (Worker) was employed by Denco Sales Co., Inc. (Employer) and was injured at work on the morning of February 1, 2017, when she pulled a forty-pound box off of a shelf and it fell onto her neck and shoulder. She reported the injury to her supervisor, who told her to seek medical care from Concentra because Concentra is the medical provider used by Employer. Worker went there later that afternoon for medical care. She was released to return to work with weight restrictions on lifting, pushing, and pulling.

         {¶3} The claims process began immediately. Concentra sent a letter to Worker's supervisor stating that Worker had received treatment on February 1, 2017, for a work-related injury. The letter also requested that Employer fill out Employer's first report of injury for the insurance carrier to ensure timely management of the claim. Employer did so on February 2, 2017. On February 3, 2017, two days after the accident, Sedgwick Claims Management Services (Employer's third-party administrator) sent a letter to Worker stating that Sedgwick administers workers' compensation claims on behalf of Employer and provided contact information for the Sedgwick claims associate handling Worker's claim.

         {¶4} During the month of February, Worker continued to receive medical care from Concentra. On February 28, 2017, Sedgwick sent Worker a letter (HCP letter) stating that Employer had decided to allow Worker to choose the initial HCP. Worker continued to treat with Concentra after receiving the HCP letter and was referred to Dr. Crawford for a C-spine evaluation on March 23, 2017. Exactly sixty days later, on May 22, 2017, Employer sent Worker a notice of change of health care provider, which notified Worker that Employer was claiming to have the automatic right to the second HCP selection under Section 52-1-49(B), (C) (allowing the employer to make the second HCP selection when the worker makes the first selection), and that Employer was changing Worker's doctor to Barrie Ross, MD. Worker timely filed an objection to the notice of change with the Workers' Compensation Administration (the Administration), arguing that Employer had made the initial selection of HCP by directing Worker to Concentra on the day of the accident. Worker also contended that the HCP letter was legally insufficient notice of Employer's decision regarding the initial selection because it was untimely and because it was sent by an administrator, not Employer.

         {¶5} The WCJ held a hearing on June 5, 2017, and issued a written order the next day with the following findings and conclusions. While the WCJ determined that Sedgwick was permitted to advise Worker of Employer's decision regarding selection of the initial HCP, the WCJ concluded that the February 28, 2017, HCP letter from Sedgwick was not valid written notice from Employer because it did not accurately reflect Employer's decision to initially direct Worker to Concentra. The WCJ held that "[b]ased on evidence presented, Employer has elected to initially direct Worker's medical care" but concluded that the period prior to the hearing was not a selection by either party under NMAC. The WCJ further determined that "Employer's choice of initial [HCP] shall be in effect as set forth in [Section] 52-1-49(B) and and (3) [NMAC]," and permitted Employer the opportunity to select an initial HCP following the hearing. Employer notified Worker of its initial selection on June 7, 2017, again choosing Dr. Barrie Ross. Worker and Employer cross-appealed the WCJ's June 6, 2017, order.


         {¶6} In New Mexico, both the worker and the employer have an opportunity to select a HCP during the course of a worker's treatment. Section 52-1-49(B), (C). Over a decade ago, we remarked that "[t]he selection of HCP is a highly contested issue in workers' compensation cases," an observation that continues to prove true to this day. Howell v. Marto Elec, 2006-NMCA-154, ¶ 13, 140 N.M. 737, 148 P.3d 823. Before proceeding to the merits of the parties' appeals, it is useful to undertake a brief overview of New Mexico's statutory and regulatory scheme for the selection of HCPs.

         {¶7} Before 1990, "a worker had no right to participate in the selection of his treating physician, but only had the option of rejecting the selection made by the employer." City of Albuquerque v. Sanchez,1992-NMCA-038, ¶ 19, 113 N.M. 721, 832 P.2d 412. "This placed New Mexico in the minority of jurisdictions in that the worker played no part in the selection of his doctor." Id. "The [L]egislature substantially rewrote Section 52-1-49 in 1990" to allow both the worker and the employer to have input into the selection of worker's health care provider. Id. ΒΆ 20. "Thus, both the value of allowing the worker to have a ...

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