FROM THE WORKERS' COMPENSATION ADMINISTRATION Rachel A.
Bayless, Workers' Compensation Judge
& Weems LLC Derek Weems Albuquerque, NM for Appellant
O'Brien & Padilla, P.C. Erica R. Neff Albuquerque, NM
Mexico Workers' Compensation Administration Hector H.
Balderas, Attorney General Santa Fe, NM Craig C. Kling,
Special Assistant Attorney General Albuquerque, NM for Amicus
P. DUFFY, JUDGE
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
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.
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.
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.
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 126.96.36.199(B)(2)(b) 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
188.8.131.52(B)(2) 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.
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.
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. ¶ 20. "Thus,
both the value of allowing the worker to have a ...