Court: New Mexico Court of Appeals; November 9, 2006; New Mexico; State Appellate Court
In this case, the court addressed the implications of an employer's failure to notify a worker about their decision regarding the selection of health care providers within the framework of New Mexico's Workers’ Compensation laws. The court determined that the Workers’ Compensation Judge (WCJ) incorrectly ruled that the absence of selection by both the employer and the worker for the initial health care provider did not adequately rebut the presumption created by the employer's failure to provide proper notice. Consequently, the court reversed the WCJ's decision and remanded the case for further proceedings.
Key facts include that John Howell, an electrician for Marto Electric, suffered significant injuries from a fall on June 8, 2005, and was treated at the University of New Mexico Hospital (UNMH). Despite the employer being aware of the injury and authorizing care at UNMH, a letter sent two days later did not specify who would select the initial health care provider. Howell did not see this letter while receiving treatment.
While at UNMH, Howell expressed a desire for rehabilitation close to home, but was not admitted to Rio Rancho Nursing and Rehabilitation due to the facility's refusal to comply with Workers’ Compensation fee schedules. Instead, he was transferred to HealthSouth Rehabilitation Hospital, which was also preauthorized by the employer, though the employer contended that it did not influence the selection.
After being discharged, Howell sought chiropractic treatment, which was not authorized by the employer, and both parties later agreed not to pursue payment for those services. In mid-September, Howell indicated a preference for Dr. Carlos Esparza as his health care provider, and the employer purportedly informed him of his right to make that selection, subsequently filing a notice of change. However, the employer also indicated it reserved the right to select a second health care provider within sixty days.
A hearing was held to address the dispute over healthcare provider (HCP) selection between the Worker and Employer. The Workers' Compensation Judge (WCJ) found that non-emergency care commenced upon the Worker’s discharge from UNMH and noted that the Employer failed to provide written notice regarding the order of selection for HCPs. This failure created a presumption that the Employer had selected the Worker’s initial HCP, but the WCJ determined that this presumption disappeared when other evidence was presented. It was concluded that neither party selected HealthSouth as an HCP; instead, HealthSouth's selection was by implied agreement. Consequently, the Worker’s selection of Dr. Esparza was deemed the initial HCP selection, allowing the Employer the option to select a second HCP.
The Worker appealed the WCJ’s decision, raising three points: first, that the characterization of HealthSouth’s selection contradicted the law; second, that the presumption of initial HCP selection did not vanish based on the evidence; and third, that the evidence presented by the Employer was insufficient to rebut the presumption. The appellate court found that the WCJ erred in applying relevant laws and reversed the decision for further proceedings.
Additionally, the court addressed pending motions from both parties regarding the submission of supplemental evidence. The Employer sought to introduce chiropractor bills paid post-hearing, while the Worker sought to submit evidence concerning changes to the Employer's form letter for injured workers. However, as the supplemental materials were not part of the original record submitted to the WCJ, the court denied both motions, affirming its role as a reviewing court limited to the evidence presented at the initial hearing.
The selection of Health Care Providers (HCP) in workers’ compensation cases is a contentious issue, balancing employees' rights to choose their physicians against the need for quality control in medical care. New Mexico's statutory framework allows both employers and workers to select HCPs, with employers having the first opportunity to choose. Under Section 52-1-49(B), if the employer does not select an initial HCP, the worker may do so. After 60 days, the non-selecting party can choose a second HCP, which automatically replaces the first without the need for justification.
If objections arise regarding the second HCP, the party objecting must prove that the provider is not delivering reasonable or necessary care. Employers are mandated to inform workers in writing about their choice of who selects the initial HCP, which can be communicated pre- or post-injury. Failure to provide this notice leads to a presumption that the employer selected the initial HCP. The document also references relevant case law and regulatory provisions that support these guidelines.
Worker claims that the Workers' Compensation Judge (WCJ) misinterpreted statutory and regulatory provisions related to the Workers’ Compensation Act. The interpretation of these laws is a legal question subject to de novo review. While courts typically defer to an agency's interpretation of ambiguous statutes, it is their role to align interpretations with legislative intent.
The WCJ classified HealthSouth as a health care provider (HCP) chosen by neither party, which Worker argues is an improper designation created to allow both parties to select an HCP. This characterization is considered contrary to the law.
Under Section 52-1-29(A), an injured worker must notify their employer of an injury within fifteen days, with a maximum of sixty days allowed under certain circumstances. Once notified, Section 52-1-49(A) mandates that the employer must provide timely and necessary medical care. Additionally, Section 52-1-49(B) stipulates that the employer must either select the HCP or allow the worker to select one.
Emergency care is excluded from the HCP selection process, with no other medical care types excluded. Assuming the employer has been notified of the injury, the statute implies only two types of HCPs for non-emergency care: one chosen by the employer and a second by the worker if the employer selected the first. In this case, the facts do not support a scenario for an authorized HCP following emergency care before the employer decides on the initial HCP. Therefore, after the employer is notified and a reasonable time has elapsed, the first non-emergency HCP should be recognized as the initial HCP.
Employer recognized Worker’s work-related accident by authorizing emergency care at UNMH, triggering the obligation under Section 52-1-49 to provide necessary medical care and decide on the initial healthcare provider (HCP). The Workers’ Compensation Judge (WCJ) found that non-emergency care commenced upon Worker’s discharge from UNMH on June 13, 2005, followed by a transfer to HealthSouth. Employer argued that it lacked sufficient information to select an HCP at the time of transfer, thereby rendering HealthSouth a non-selection. However, Worker received care at HealthSouth for eight weeks without Employer communicating its choice until Worker opted to change providers. Employer cited 11.4.4.11(C)(2)(c) NMAC, which states that medical treatment received before Employer’s written decision is considered authorized and costs are borne by the Employer. While acknowledging the potential for HCPs not to be selected by either party, the court disagreed with Employer’s claim, emphasizing that prior rulings indicate the Employer retains rights under Section 52-1-49 even if treatment occurs before a decision is made. The distinction between authorized health care and a qualified HCP remains ambiguous, but the court leaned towards interpreting the regulations in light of the case facts, suggesting HealthSouth did not fit the criteria of an HCP under the circumstances.
In Grine II, the Supreme Court clarified that the regulation 11.4.4.11(C)(2)(c) NMAC aims to ensure timely medical attention for work-related injuries, mandating employers to cover medical expenses prior to fulfilling notice requirements under Section 52-1-49(B) and 11.4.4.11(C)(2)(a) NMAC. The employer's responsibility to manage medical care commences upon receiving notice of the injury, emphasizing that emergency care is included even if the employer has not yet been informed of the injury. The regulation also applies when a worker is transferred from an emergency provider to a non-emergency provider.
In this case, HealthSouth was deemed not to be an authorized healthcare provider (HCP) because the employer was aware of the worker's injury before the transfer from UNMH to HealthSouth and failed to make a timely decision regarding care direction. The court found eight weeks to be an unreasonable duration for the employer to provide notice. Consequently, since the employer had notice and did not communicate its decision promptly, HealthSouth is considered the initial HCP, contradicting the WCJ's ruling.
During the WCJ hearing, the employer claimed that a letter sent post-accident sufficed as notice of its HCP selection, but the WCJ dismissed this due to the letter's content and the worker's denial of receipt. The WCJ also concluded that the employer's inadequate notice under 11.4.4.11(C)(2)(a) NMAC led to a presumption of its selection of the initial HCP, which was rebutted by evidence showing that neither party selected HealthSouth, or that both impliedly agreed to it. Ultimately, the WCJ determined that the worker's choice of Dr. Esparza constituted the initial HCP selection, a conclusion the worker argues misapplies the regulation and undermines its intent.
Employers must provide written notice to workers regarding their decision on who will select the initial healthcare provider (HCP) following a work-related injury, as mandated by 11.4.4.11(C)(2)(a) NMAC. If the employer fails to give this notice, it is presumed that the employer has selected the initial HCP (11.4.4.11(C)(2)(b) NMAC). The worker contends that the Workers' Compensation Judge (WCJ) erred by ruling that the employer's failure to comply with the notice requirement was rebutted by evidence that the employer did not choose HealthSouth as the initial HCP.
The presumption established in 11.4.4.11(C)(2)(b) NMAC has been acknowledged in New Mexico Supreme Court case Grine II, which emphasized that employers must communicate their decision regarding the initial HCP selection in writing after being notified of a worker’s injury. If they do not comply, they are deemed to have made the selection. The case involved a worker who suffered a heart attack and sought treatment independently. The WCJ ruled that the worker's care was authorized, yet noted that if the employer had not informed the worker of its decision within a reasonable timeframe, the cardiologist would be considered the initial HCP.
It is evident that without guidance from the employer after an accident, a worker will seek necessary medical treatment independently. If a worker challenges the employer's noncompliance, the employer's ability to present evidence that it did not select the initial HCP or that the worker chose it would negate the presumption. Such a scenario would undermine the legislative intent behind Section 52-1-49(B), which seeks to ensure that either the employer selects the HCP or allows the worker to make that selection. The Grine II case did not clarify how employers could rebut this presumption, and the regulations offer limited guidance. The intent of 11.4.4.11(C)(2)(b) NMAC is to incentivize employers to meet notice requirements, and allowing the presumption to be easily rebutted would significantly weaken this incentive.
The provision 11.4.4.11(C)(2)(b) NMAC aims to prevent delays in the selection of a health care provider (HCP) by an employer after a worker begins non-emergency health care. In this case, the employer did not inform the worker of the HCP selection until eight weeks after treatment began, only responding after the worker expressed a desire to change HCPs. Although the Workers' Compensation Act allows for input from both parties in selecting HCPs, the employer ultimately decides when the worker can choose their HCP. The employer has a legal obligation to provide timely and necessary health care services upon notification of a work-related injury. Therefore, it is mandated that the employer communicate its HCP selection to the worker within a reasonable timeframe. If the employer fails to do so, the first non-emergency HCP is deemed selected. The court found that the Workers' Compensation Judge (WCJ) made a legal error by allowing the presumption of selection to be rebutted based on the employer's lack of intent in choosing HealthSouth as the initial HCP. The court did not rule out the possibility of the employer rebutting the presumption with different evidence but concluded that the evidence presented was insufficient. The decision is reversed and remanded for further proceedings.
