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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 PETE LEYBA,

3 Worker-Appellee,

4 v. NO. 32,636

5 COLORADO CASUALTY 

6 INSURANCE COMPANY,

7 Insurer,

8 THUNDERBIRD SUPPLY CO., INC., and 

9 CONTINENTAL WESTERN INSURANCE 

10 UNION STANDARD INSURANCE,

11 Employer/Insurers-Appellants.

12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

13 Terry S. Kramer, Workers’ Compensation Judge

14 Kathryn L. Eaton

15 Albuquerque, NM 

16 for Appellee

17 Doughty & West, P.A.

18 Minerva C.R. Camp

19 Albuquerque, NM 

20 Bannerman & Johnson, P.A.

21 Margaret Graham
2

1 Albuquerque, NM 

2 for Appellants

3 MEMORANDUM OPINION

4 VANZI, Judge.

5 {1} Appellants Employer/Insurer Thunderbird Supply Co. and Insurer Continental

6 Western Insurance of the Union Standard Insurance Group (collectively, Insurer)

7 appeal from the workers’ compensation judge’s (WCJ) ruling that Appellee Pete

8 Leyba’s (Worker) second work accident did not cause or contribute to Worker’s

9 shoulder injury from his first work accident. [RP Vol.II/248] Our notice proposed to

10 affirm, and in response, Insurer filed a supplemental record proper and memorandum

11 in opposition. We remain unpersuaded by Insurer’s arguments, and therefore affirm.

12 {2} Insurer continues to dispute the WCJ’s determination that Worker’s disability

13 was solely caused by his November 2008 work-related accident (first accident), and

14 that Worker’s subsequent July 2010 work-related accident (second accident) did not

15 cause or contribute to his injury or disability. [DS 3; MIO 3-17] See generally NMSA

16 1978, § 52-1-28(B) (1987) (“In all cases where the employer or his insurance carrier

17 deny that an alleged disability is a natural and direct result of the accident, the worker

18 must establish that causal connection as a probability by expert testimony of a health

19 care provider . . . testifying within the area of his expertise.”). In reviewing whether
3

1 Worker proved the requisite causal connection, we apply a whole record standard of

2 review and will affirm if, after taking the entire record into consideration, “there is

3 evidence for a reasonable mind to accept as adequate to support the conclusion

4 reached.” Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 128, 767 P.2d 363,

5 367 (Ct. App. 1988), holding modified on other grounds by Delgado v. Phelps Dodge

6 Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. We review the WCJ’s

7 application of the law to the facts, however, de novo. Tom Growney Equip. Co. v.

8 Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113 P.3d 320.

9 {3} As extensively detailed in our notice, evidence was presented through the

10 testimony of Dr. Babinski that Worker’s shoulder injury was solely caused by his first

11 accident. [RP Vol.II/253-54] Based on his evaluation of Worker and on his review

12 of Worker’s MRI studies [RP Vol.II/250], Dr. Babinski opined that, to a reasonable

13 degree of medical probability, Worker’s right shoulder injuries – including a rotator

14 cuff tear ultimately necessitating surgical repair – were causally related to the first

15 accident [RP Vol.II/239, 250], and that the second accident provided only a temporary

16 flare-up of Worker’s shoulder injury that did not materially change the nature of

17 Worker’s shoulder injury. [RP Vol.II/229, 240, 250-51, 254] Consistent with Dr.

18 Babinski’s opinion, Worker’s complaints of shoulder pain continued to worsen

19 following the first accident [RP Vol.II/237] and Worker did not have lasting relief

20 from the shoulder pain between the first and second accidents. [RP Vol.II/250] 
4

1 {4} Despite the foregoing, however, Insurer continues its efforts to cast doubt on

2 Dr. Babinski’s causation testimony. In this regard, Insurer maintains that Dr.

3 Babinski’s causation testimony was “unreliable” on the asserted basis that Worker

4 misrepresented his medical history. [MIO 3, 7] As support for this assertion, Insurer

5 emphasizes that “Worker did not mention or explain the mechanism of the second

6 injury at the October 18, 2010, visit with Dr. Babinski.” [DS 5-6, 7; MIO 3, 4, 6] and

7 that Dr. Babinski “could not tell the judge the mechanism or date of the second

8 injury.” [MIO 4, 6] As provided in our notice, however, these asserted deficiencies

9 were a matter for the WCJ as fact finder to consider when weighing the evidence. See

10 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926

11 (stating that it is for the WCJ as the fact finder to assess credibility and weigh the

12 evidence). 

13 {5} We note also that, while Insurer emphasizes that Dr. Babinski had only

14 reviewed one MRI study at Worker’s initial October 18, 2010, office visit [MIO 3-4],

15 evidence was introduced that, ultimately, Dr. Babinski had knowledge of both work

16 place accidents [RP Vol.II/250] and reviewed separate MRI studies of Worker’s right

17 shoulder taken after both the first and second accidents. [RP Vol.II/229, 239, 250]

18 Moreover, to the extent Dr. Babinski did not have complete medical records from Drs.

19 Ang, Thoms, or Kamps in his file [MIO 6], we note that this too was a matter for the

20 WCJ to consider in weighing the evidence, id., and that Dr. Babinski nonetheless was
5

1 not prohibited from basing his opinion on his own evaluation of Worker and on his

2 own review of Worker’s MRI’s. Thus, although Dr. Kamps had a different medical

3 opinion than Dr. Babinski [MIO 9-10] and viewed the MRI results differently than did

4 Dr. Babinski [MIO 9], it was the WCJ’s prerogative as fact finder to rely on Dr.

5 Babinski’s assessment of Worker’s injury. See id. 

6 {6} Further, while Insurer maintains that Worker’s repetitive use of his shoulder

7 after the first accident could have caused Worker’s bicep tear such that Worker did not

8 become a surgical candidate until after the second accident [MIO 8, 10], the WCJ as

9 fact finder was entitled to rely on Dr. Babinski’s testimony that the second accident

10 provided only a temporary flare-up of Worker’s shoulder injury that did not materially

11 change the nature of Worker’s shoulder injury. [RP Vol.II/229, 240, 250-51, 254] In

12 doing so, the WCJ could have considered, among other matters, evidence that while

13 Worker did not have surgery after the first accident, Worker elected not to because he

14 desired to obtain a second opinion. [RP Vol.II/227, 236, 249] 

15 {7} In sum, because it was within the WCJ’s prerogative to weigh conflicting

16 evidence and because the MRI results may be viewed to support the WCJ’s conclusion

17 that Worker’s shoulder injury was causally related only to the first accident, but not

18 the second work accident, we conclude that the evidence supports the WCJ’s ruling

19 that Worker’s injury was solely caused by the first accident. [RP Vol.II/253-54] See

20 DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341
6

1 (“Substantial evidence on the record as a whole is evidence demonstrating the

2 reasonableness of [the WCJ’s] decision, and we neither reweigh the evidence nor

3 replace the fact finder’s conclusions with our own.”). We therefore affirm. 

4 {8} IT IS SO ORDERED.

5 __________________________________

6 LINDA M. VANZI, Judge

7 WE CONCUR:

8 _________________________________

9 JAMES J. WECHSLER, Judge

10 _________________________________

11 MICHAEL D. BUSTAMANTE, Judge