This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 JOHN W. KEMPER, 7 Worker-Appellant, 8

v. NO. 28,923 9 LESLIE INVESTMENT PROPERTIES and 10 WESTPORT INSURANCE, 11 Employer/Insurer-Appellees. 12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 13 Gregory D. Griego, Workers’ Compensation Judge 14 Gerald A. Hanrahan 15 Albuquerque, NM 16 for Worker-Appellant 17 Maestas & Suggett, P.C 18 Paul Maestas 19 Albuquerque, NM 20 for Employer/Insurer-Appellees 21 MEMORANDUM OPINION 22 VANZI, Judge. 232 John Kemper (Worker) was injured in the course of his employment with Leslie 1 Investment Properties (Employer). Worker filed a claim with the Workers’ 2 Compensation Administration (WCA), and the Workers’ Compensation Judge (WCJ) 3 issued a compensation order on August 14, 2008. Worker appeals the WCJ’s findings 4 in that order regarding Worker’s residual physical capacity under NMSA 1978, 5 Section 52-1-26.4 (2003) and Worker’s impairment rating under NMSA 1978, Section 6 52-1-24 (1990). We affirm. 7 BACKGROUND 8 On November 26, 2004, Worker sustaine d a workplace injury during the course 9 of his employment with Employer. The parties stipulated that Worker’s injury 10 occurred when he was lifting “a bag of wet cement” and that the injury he sustained 11 affected his lumbar spine, testicles, groin and hips. Worker was awarded 12 compensation for this injury under the Workers’ Compensation Act. After a formal 13 hearing, the WCJ issued its compensati on order, which incorporated a benefit 14 analysis. That analysis included a determination of Worker’s residual physical 15 capacity under Section 52-1-26.4, and Worker’s impairment rating under Section 52- 16 1-24. Worker appeals these two determinations. 17 DISCUSSION 18 Standard of Review 193 “We review workers’ compensation orders using the whole record standard of 1 review.” Leonard v. Payday Professional , 2007-NMCA-128, ¶ 10, 142 N.M. 605, 2 168 P.3d 177. Under this standard, we canvass “all the evidence bearing on a finding 3 or decision, favorable and unf avorable, in order to determine if there is substantial 4 evidence to support the result.” Id. (internal quotation mark s and citation omitted). 5 We do not “substitute our judgment for that of the administrative agency, and we view 6 all evidence, favorable and unfavorable, . . . in the light most favor able to the agency’s 7 decision.” Id. (alterations, internal quotation marks and citation omitted). We will 8 affirm the agency’s decision if, after taking the entire record into consideration, there 9 is evidence—evidence a reasonable mind w ould accept as adequate—that supports the 10 conclusion reached. Id. However, “[w]e review the WCJ’s application of the law to 11 the facts de novo.” Id. 12 Residual Physical Capacity 13 Worker argues that the WCJ erred in determining that his residual physical 14 capacity is light rather than finding him to be only capable of sedentary activity. At 15 the outset, as Employer correctly observes, our standard of review prohibits us from 16 reweighing the evidence presented to the WCJ. See Cass v. Timberman Corp. , 111 17 N.M. 184, 187, 803 P.2d 669, 672 (1990). Rather, our task is merely to inquire 18 whether the WCJ’s determination that Worker was capable of light activity was based 19 on substantial evidence which a reasonable mind would accept. Id. After reviewing 204 the record, we are persuaded that the WCJ’s decision that Worker was capable of light 1 activity was based on substantial evidence, i.e., the professional medical opinions of 2 Dr. Reeve and Dr. Diskant. 3 The WCJ found that “Worker is medically restricted, after medical stabilization, 4 to activities which are at a light level of exertion” as the term “light” is defined in 5 Section 52-1-26.4(C)(3). In reaching this conclusion, the WCJ considered Worker’s 6 testimony regarding his physical limitations following the accident and the medical 7 assessments of Worker provided by doctors Anthony Quay, M.D., Barry M. Diskant 8 M.D., and Anthony Reeve, M.D. The doctors’ assessments of Worker were not in 9 complete agreement. As we discuss be low, Drs. Reeve and Diskant both concluded 10 that Worker was capable of light activity. Dr. Quay, on the other hand, concluded that 11 Worker should be restricted to sedentary activity. 12 Dr. Diskant assessed Worker on October 18, 2007. That assessment was 13 comprehensive. Dr. Diskant’s report is fifty pages in length, provides a detailed 14 account of Worker’s medical history, and an in-depth account of the variety of 15 procedures Worker has undergone and medications Worker has taken to address his 16 numerous medical problems, including his lower back problems, which arise from 17 Worker’s workplace injury and his preex isting lower back condition. Several 18 paragraphs of Dr. Diskant’s report are dedicated to Worker’s ability to walk, stand, 19 squat, and perform other basic functions . Dr. Diskant’s report also addressed 201 Worker alleges in a footnote in his brief in chief that the FCE report was 12 inadmissible at trial as th e health care provider who carried out the FCE was not an 13 authorized health care provider under the Wo rkers’ Compensation Act. Worker failed 14 to indicate whether this argument was advanced during the WCA proceedings, see 15 Campos Enter., Inc. v. Edwin K. Williams and Co. , 1998-NMCA-131, ¶ 12, 125 N.M. 16 691, 964 P.2d 855 (“This Court reviews the case litigated below, notthe case that is 17 fleshed out for the first time on appeal.”) (alterations and internal quotation marks 18 omitted), and how this argument was preserved for appeal. See Robertson v. Rocky 19 Mountain Metals, Inc. , 2006-NMCA-101, ¶ 13, 140 N.M. 261, 142 P.3d 29 (observing 20 that we shall not review arguments not preserved during WCA proceedings). These 21 two issues aside, we explicitly held in Lopez v. City of Albuquerque , 118 N.M. 682, 22 683-84, 884 P.2d 838, 839-40 (Ct. App. 1994) that an authorized health care provider 23 may rely on inadmissible health care records during WCA proceedings and those 24 documents may be admitted into the r ecord to demonstrate that reliance. 25 5 Worker’s range of motion. Most critically , Dr. Diskant specifically noted that Worker 1 was the subject of a functional capac ity evaluation (FCE) on April 28, 2006. 1 During 2 that evaluation, Worker was capable of lif ting twenty-eight pounds a distance of thirty 3 to fifty-four inches. Dr. Diskant commented that, based on the results of the FCE, 4 Worker demonstrated an ability to perform safely within the light activity category. 5 Dr. Diskant further noted that Workersaw a Dr. Genovese -Elliott on May 2, 2006, 6 and after reviewing the FCE, she also c oncluded that Worker was capable of light 7 activity. As a result of his assessment of Worker, Dr. Diskant concluded that Worker 8 was capable of returning to light activity. 9 Dr. Reeve evaluated Worker on December 5, 2005. Dr. Reeve’s evaluation of 10 Worker, though not nearly as comprehensive as Dr. Diskant’s, also provided a full 11 background of Worker’s ailments, including Worker’s workplace injury, and the 126 treatments employed to remedy those ailmen ts. In his report, Dr. Reeve evaluated 1 Worker’s range of motion and made observations regarding Worker’s physical health 2 and physical capabilities. As a result of th is examination, Dr. Reeve also concluded 3 that Worker was capable of returning to light activity. We are persuaded that a 4 reasonable mind could conclude, based on th ese reports, that Worker was capable of 5 light rather than sedentary activity. 6 The evidence in the record unfavorab le to the WCJ’s finding—Dr. Quay’s 7 testimony and Worker’s own testimony—is insufficient to alter this conclusion. 8 Worker urges us to afford “the greatest we ight” to Dr. Quay’s opinion in assessing his 9 residual physical capacity. We decline to do so. See Cass , 111 N.M. at 187, 803 P.2d 10 at 672 (stating that the Court is not to re weigh the evidence or resolve any conflicts 11 in evidence). Although Dr. Quay was Worker’s primary treating physician, his 12 medical report was brief and his conclusion that Worker is incapable of lifting more 13 than ten pounds is contradicted by Dr. Di skant and Dr. Reeve’s findings. Dr. Quay 14 testified that he was not familiar with the AMA Guid es and has never assessed 15 impairment according to those guidelines. Dr. Quay also testified that he was not 16 familiar with the concept of maximum me dical improvement and could not answer 17 whether Worker’s lower back problems ever reached such improvement. Finally, Dr. 18 Quay’s classification of Worker as sede ntary in both January 2005 and June 2006, was 19 based only on his assessment of Worker’s desc ription of his pain. By the time of his 207 deposition in May 2007, Dr. Quay was unw illing to say what restrictions and 1 impositions he would impose on Worker and st ated instead that he would leave that 2 up to the “consulting physicians.” 3 We are unpersuaded by Worker’s conten tion that his own testimony rebuts the 4 findings of Dr. Reeve and Dr. Diskant. Wo rker’s testimony was merely a first person 5 account of what he told Dr . Diskant and Dr. Reeve. Worker does not argue that he 6 withheld information from Dr. Diskant and Dr. Reeve or that Dr. Diskant and Dr. 7 Reeve based their opinions on erroneous info rmation. Moreover, as explained in 8 greater detail below, Worker’s own tes timony contradicts Dr. Quay’s assessment. 9 Accordingly, our review of the whole record indicates that substantial evidence 10 existed upon which a reasonable mind was ableto determine that Worker’s residual 11 physical capacity is light duty in nature. 12 We also disagree with Worker’s reading of Slygh v. RMCI, Inc. , 120 N.M. 358, 13 901 P.2d 776 (Ct. App. 1995), and Medina v. Berg Const., Inc. , 1996-NMCA-087, 14 122 N.M. 350, 924 P.2d 1362, and we are not persuaded that these cases support 15 Worker’s contention that the WCJ erred in reaching the conclusion that he was 16 capable of light activity. 17 Slyghis effectively a mirror image of the present matter. In that case, the 18 employer contested the WCJ’s determination that the employee was capable of 19 sedentary residual duty. Slygh , 120 N.M. at 359, 901 P.2d at 777. The employer, 208 relying on the testimony of the employee’ s doctor who had evaluated the employee, 1 argued that the WCJ was bound by the doctor’s opinion concluding that the employee 2 was capable of light duty. Id. We disagreed and held that the WCJ was entitled to 3 make an independent judgment regarding the employee’s residual physical capacity. 4 Id. The judge was free to consider the te stimony of the doctor in the same manner, 5 and to the same degree, as any other e xpert testimony presented. Thus, it was not 6 improper for the WCJ to consider the te stimony of both the doctor and the employee 7 to reach the conclusion that the employee had a sedentary residual physical activity. 8 Id. at 360-61, 901 P.2d at 778-79 (“Based on th e testimony of both [the doctor] and 9 [the worker], the judge could have reasonabl y concluded that [the worker] did not fall 10 within the light residual physical cap acity category”). Accordingly, Slyghmerely 11 stands for the proposition that the WCJ is not required to defer to any single opinion 12 and may reject an expert opinion in w hole or in part when reaching a finding 13 regarding a worker’s residual physical capac ity. The WCJ is charged with assessing 14 all of the evidence presented and is re quired to reach a conclusion reasonably 15 supported by that evidence. As we have e xplained, the WCJ’s finding that Worker is 16 capable of light activity in this case wa s reasonable based on the evidence before it. 17
In Medina , we held, as Worker observes, that“a worker must be able to meet 18 all the lifting requirements for each [residual physical capacity category] in order to 19 be classified [as part of] that [category].” Medina , 1996-NMCA-087, ¶ 27. Light 209 duty activity contemplates the following lifting activity: “the ability to lift up to 1 twenty pounds occasionally or up to ten pounds frequently.” Section 52-1-26.4(C)(3). 2 Worker claims that he is unable to satisfy these lifting requirements because he 3 cannot bend. Lifting ten pounds frequently , according to Worker, requires bending 4 and because he cannot bend, he cannot lift anything freque ntly. Worker provides no 5 authority for this linkage. Regardless of whether or not Worker can bend, however, 6 the record reveals that Worker testified during the WCA proceedings as follows: “I 7 can lift 20 pounds right now . . . I got strong arms.” Furthermore, the FCE referenced 8 in Dr. Diskant’s report, which Dr. Diskan t relied upon to conclude that Worker was 9 capable of returning to light activity, indi cated that worker was capable of lifting a 10 degree of weight within the light activity category. We are satisfied that the WCJ’s 11 conclusion that Worker was capable of fu lfilling the lifting requirements of the light 12 activity category was reasonably supported by the record. 13 Worker then raises what appears to be a second Medinaargument. The lifting 14 requirements aside, Worker also claims that he is incapable of walking or standing to 15 a significant degree and thus, is incapable of fulfilling the type of activity 16 contemplated by the light activity category. The second half Section 52-1-26.4(C)(3) 17

states: 18 Even though the weight lifted may beonly a negligible amount, a job is 19 in this category when it requires walking or standing to a significant 2010 degree or when it involves sitting most of the time with a degree of 1 pushing and pulling of arm or leg controls or both[.] 2 Id. By its plain language, the light activity designation does not merely contemplate 3 activities requiring one to stand to a significant degree. It also contemplates activities 4 involving sitting most of the time. Accordingly, whether Worker can stand to a 5 significant degree is not dispositive of whether he is capable of light activity. The 6 minimum threshold is whether he is cap able of “sitting most of the time” and 7 simultaneously capable of “pushing and pulling arm or leg controls.” Id. Worker 8 does not contend that he is incapable of su ch activity. Based on the foregoing, we see 9 no basis to conclude that Medinaundermines the WCJ’s conclusion that Worker is 10 capable of light activity. 11 Impairment Rating 12 We next address Worker’s contention that the WCJ’s finding with regard to 13 Worker’s impairment rating was erroneous. Because the issue of Worker’s 14 impairment rating relates to other injuries suffered by Worker, we review the facts 15 regarding his medical history in more detail. 16 In addition to the November 26, 2004 injuryat issue in this case, Worker was 17 involved in three different accidental injuri es. First, in December 2000, Worker began 18 to experience the gradual onset of pain inhis lower back which continued to worsen 19 significantly over time. He ultimately underw ent lumbar surgery by Dr. Philip Shields 2011 in April 2001 to repair several disc abnormalities. The accident on November 26, 1 2004, was therefore the second injury to Worker’s lumbar spine. Worker also 2 sustained two injuries to his neck. OnSeptember 10, 2002, Worker sustained an 3 injury to his cervical spine as the result of a motor vehicle acci dent. Most recently, 4 on July 27, 2005, Worker re-injured his neck in an accident he sustained while 5 working for Lithia Motors of Santa Fe, Inc. (Lithia). 6 The WCJ found that “Worker has a perm anent physical impairment of 19% of 7 the whole person[.]” The WCJ based this rating on Dr. Diskant’s assessment that 8 Worker’s workplace injury and his gradual onset injury combined to result in a 19% 9 impairment rating. Worker does not challe nge this finding. Dr. Diskant described 10 Worker’s impairment as affecting Worker’s lower back and attributed Worker’s lower 11 back impairment to the two events described above: (1) Worker’s workplace injury, 12 and (2) the preexisting gradual onset injury affecting Worker’s lower back which 13 required surgery in 2001. 14 In his report, Dr. Diskant also indicated that Worker suffers from a separate and 15 additional 23% impairment which affects Workers neck and was caused by the two 16 motor vehicle accidents Worker experienced . Dr. Diskant commented in his report 17 that if Worker’s workplace injury impairment was combined with Worker’s multiple 18 automobile accident impairme nt, Worker’s total impairment rating would be 38%. 19 However, Dr. Diskant concluded that it woul d be error to combine the two impairment 2012 ratings as the impairment resulting from the automobile accidents “neither caused, 1 aggravated, exacerbated, accelerated nor precipitated” the impairment caused by the 2 workplace injury. 3 Worker asserts that the WCJ should havefound that his impairment rating was 4 38%. This figure is based on Worker’s a ssertion that his 19% impairment rating 5 should have been combined with the 23% impairment rating Dr. Diskant attributed to 6 Worker’s neck injuries which Worker sustained as a result of two automobile 7 accidents. We reiterate that we employ th e whole record standard of review when 8 evaluating the WCJ’s findings and review the WCJ’s application of the law to the 9 facts de novo. Leonard , 2007-NMCA-128, ¶ 10. 10 This Court has previously held that“when a preexisting condition combines 11 with a work-related injury to cause a di sability, an employee is entitled to benefits 12 commensurate with the total disability sustained[.]” Edmiston v. City of Hobbs , 13 1997-NMCA-085, ¶ 8, 123 N.M. 654, 944 P.2d 883; see also Reynolds v. Ruidoso 14 Racing Ass'n, Inc. , 69 N.M. 248, 258, 365 P.2d 671, 678 (1961) (ordering workers’ 15 compensation judge to combine the degree of a worker’s injury arising from his 16 Osteoporosis, a disease which weakens the bone s, with the degree of a worker’s injury 17 arising from his workplace spinal injury). This rule—which we have previously 18 referred to as the “enhanced disability ru le”—stems from the general principle that 19 “the employer takes the employee as it finds that employee.” Smith v. Arizona Public 2013 Service Co. , 2003-NMCA-097, ¶ 11, 134 N.M. 202, 75 P.3d 418 (internal quotation 1 marks and citation omitted). Worker assert s, in the present matter, that the neck 2 injuries he sustained as a result of his motor vehicle accidents constituted a preexisting 3 condition which combined with his back in jury resulting in one collective disability. 4 We evaluate this claim in light of the guidance we provided in Edmiston and Smith

. 5
In Smith , we held that the “appropriate st andard for determining compensation 6 [when a worker invokes the enhanced disab ility rule] is simply whether or not the 7 preexisting condition and the workplace in jury combined to produce an overall 8 condition of disability.” 2003-NMCA-097, ¶ 12 (internal quotation marks and citation 9 omitted). This standard was drawn from Edmiston where we made it clear that, in 10 resolving whether the preexisting condition combined with the workplace injury, the 11 workers’ compensation judge was required to resolve two questions: (1) whether the 12 disability is the natural and direct result of the workplace injury; and (2) whether the 13 workplace injury aggravated or accelerated the preexisting condition, or produced 14 combined effects with the preexisting condition, to produce the disability. Edmiston , 15 1997-NMCA-085, ¶¶ 15-23. 16 We further clarified in Edmiston , regarding the first prong of this two prong 17 approach, that “[w]hen . . . an employer challenges whether the disability is the natural 18 and direct result of the accident, a workermust establish a causal connection between 19 the two to a medical probability. The workermust meet this burden of persuasion by 2014 producing expert medical testimony as to causation.” Id. at ¶ 16 (internal citations 1 omitted). This requirement, we explained, derives from the settled principle that “the 2 Workers’ Compensation Act does not allow anaward of compensation benefits based 3 on later injuries or illnesses that are whollyunrelated to either the employment or the 4 original compensable injury.” Leo v. Cornucopia Rest. , 118 N.M. 354, 359, 881 P.2d 5 714, 719 (Ct. App. 1994); see , e.g. , Clavery v. ZIA Co. , 104 N.M. 321, 322-23, 720 6 P.2d 1262, 1263-64 (Ct. App. 1986) (holding that worker’s subsequent breast cancer 7 diagnosis could not be combined with her workplace back injury for purposes of 8 assessing worker’s compensation benefits); Holliday v. Talk of the Town Inc. , 98 N.M. 9 354, 356, 648 P.2d 812, 814 (Ct. App. 1982) (holding that worker’s subsequent 10 emphysema diagnosis could not be combined with his workplace hand injury for 11 purposes of assessing worker’s compensation benefits). 12 Based on the principles articulatedabove, we disagree with Worker’s 13 contention that the WCJ erred in rejecti ng his request to combine the impairment 14 rating related to his back injury with the im pairment rating related to his neck injury. 15 Employer has challenged whether Worker’s neck injury is th e natural and direct result 16 of Worker’s workplace injury and has pr ovided expert testimony that it is not. 17 Accordingly, under Edmiston , Worker was required to submit expert medical 18 testimony that the impairment affecting his n eck in fact had a causal connection to the 19 workplace injury. Worker has not directed us to any suchevidence in the record and 2015 Employer asserts that there was none. Worker merely avers on appeal that both his 1 back and neck impairments affected his ability to bend. Thus, the impairments should 2 have been combined. Under the case law outlined above, Worker cannot rest on his 3 own unsubstantiated assertions. We hold th at, as a matter of law, Worker failed to 4 provide a sufficient basis upon which the WC J would have been permitted to combine 5 Worker’s 19% impairment rating with his 23% impairment rating. Accordingly, the 6 WCJ did not err in finding that Worker was 19% impaired. 7 CONCLUSION 8 For the foregoing reasons, we affirm. 9 IT IS SO ORDERED. 10

___________________________ 11 LINDA M. VANZI, Judge 12

WE CONCUR: 13

______________________________________ 14 RODERICK T. KENNEDY, Judge 15

______________________________________ 16 TIMOTHY L. GARCIA, Judge 17