                                                      I attest to the accuracy and
                                                       integrity of this document
                                                         New Mexico Compilation
                                                       Commission, Santa Fe, NM
                                                      '00'04- 09:49:53 2013.09.20
Certiorari Denied, July 24, 2013, No. 34,205

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-088

Filing Date: May 20, 2013

Docket No. 32,074

LARRY V. LAUGHLIN,

       Worker-Appellee/Cross-Appellant,

v.

CONVENIENT MANAGEMENT SERVICES,
INC. and ARGONAUT INSURANCE COMPANY,

       Employer/Insurer-Appellants/Cross-Appellees.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Gregory D. Griego, Workers Compensation Judge

Gerald A. Hanrahan
Albuquerque, NM

for Worker-Appellee/Cross-Appellant

Maestas & Suggett, P.C.
Paul Maestas
Albuquerque, NM

for Employer/Insurer-Appellants/Cross-Appellees

                                      OPINION

WECHSLER, Judge.

{1}    Employer Convenience Management Services, Inc. appeals from a compensation
order entered pursuant to the Workers’ Compensation Act (the Act), NMSA 1978, Sections
52-1-1 to -70 (1929, as amended through 2007). Worker filed a cross-appeal, which we
address in a separate memorandum opinion. In the compensation order, the Workers
Compensation Judge (the WCJ) determined that Worker Larry Laughlin was not at

                                          1
maximum medical improvement despite previously finding that Worker had reached
maximum medical improvement five months earlier in an order granting Worker a partial
lump sum payment from future permanent partial disability for payment of debts, pursuant
to NMSA 1978, Section 52-5-12(C) (2009). We hold that the WCJ did not err by
determining that Worker had a “change of condition” under NMSA 1978, Section 52-5-
9(B)(1) (1989) by electing to undergo surgery on his work-related injury and determining
that Worker was no longer at maximum medical improvement. We further hold that neither
judicial estoppel nor the law-of-the-case doctrine bars Worker’s change of position regarding
whether he was at maximum medical improvement at the date of his formal hearing despite
the WCJ’s finding that he was at maximum medical improvement at the time of the lump
sum order. Accordingly, we affirm.

BACKGROUND

{2}      Worker suffered accidents on August 22, 2008 and September 14 or 30, 2008 while
working for Employer. Worker suffered injuries to both his lower back and left testicle. He
filed a complaint with the Workers’ Compensation Administration (the WCA) on March 3,
2009, requesting temporary total disability benefits until he reached maximum medical
improvement and permanent partial disability benefits upon reaching maximum medical
improvement.

{3}     The parties entered a recommended resolution on May 7, 2009 that provided a $5000
payment to Worker and named Dr. Benito Gallardo as Worker’s authorized treating
physician. Dr. Gallardo examined Worker on May 6, 2009 and found a causal connection
between Worker’s injuries and the accidents on August 22, 2008 and September 14 or 30,
2008. When Employer refused to provide any temporary total disability after Dr. Gallardo’s
report, Worker filed a second worker’s compensation complaint. Employer rejected a
second recommended resolution on September 29, 2009, and the claim entered the
adjudication process. Employer did issue worker temporary total disability benefits of
$213.91 a week from July 8, 2009 through August 18, 2009 and October 21, 2009 through
May 3, 2011.

{4}     Dr. Gallardo testified by deposition on September 24, 2010 that Worker’s back injury
reached maximum medical improvement by March 4, 2010. Likewise, at his second
deposition, Dr. Gallardo testified that Worker’s left testicle injury had reached maximum
medical improvement by January 25, 2011, at the time that Worker elected not to have
surgery on his left testicle. Dr. Gallardo also stated in his second deposition that Worker was
not interested in having surgery on his left testicle but that if Worker did have a surgical
procedure, his left testicle injury would no longer be at maximum medical improvement.
After Dr. Gallardo reported maximum medical improvement on January 25, 2011, Employer
issued partial permanent disability benefits to Worker at 44% impairment commencing on
May 4, 2011.

{5}    On June 30, 2011, Worker filed a petition for partial lump sum payment for debts,

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pursuant to Section 52-5-12(C). The WCJ granted the lump sum request by order on July
20, 2011. The order granting partial lump sum payment for debts (the lump sum order)
determined that Worker’s injuries had reached maximum medical improvement. The WCJ
found that Worker had debts of $4,200.73 and approved an advance payment of that amount
to be deducted from future partial permanent disability benefits. The WCJ also approved an
advance payment for an amount equal to Worker’s first and last month’s rent, plus a damage
deposit in the event that Worker entered into a written rental agreement. Worker
subsequently entered into a new lease agreement, and Employer advanced an additional
$1250 to Worker.

{6}     The WCJ held the formal hearing on Worker’s claims on December 22, 2012 and
issued a memorandum decision and order on February 8, 2012 regarding the effect of the
prior lump sum award. The WCJ determined that the Act allows for a worker to reach a
status of maximum medical improvement and subsequently be removed from that status
under Sections 52-5-9(B)(1) and 52-1-56 upon, among other reasons, a change in condition.
The WCJ concluded that the Act contemplates that judicial estoppel would not be applicable
to a previous determination that a worker is not at maximum medical improvement.
Additionally, the WCJ determined that the law-of-the-case doctrine does not preclude a
worker from arguing about a change of maximum medical improvement status as long as the
change is asserted more than six months after the entry of the order.

{7}     At the formal hearing, Worker testified that he tried to delay surgery as long as
possible on his injured testicle. However, he testified that he now wanted the surgical
procedure. Both parties requested findings and conclusions after the December 22, 2011
formal hearing, and the WCJ issued a compensation order on March 14, 2012. Regarding
the legal effect of the lump sum order of July 20, 2011, the WCJ concluded that the lump
sum order did not bar Worker from arguing that he was no longer on maximum medical
improvement at the formal hearing. Accordingly, the WCA found that Worker first reached
maximum medical improvement as of September 10, 2010 but that “Worker ceased to be on
maximum medical improvement status as of December 22, 2011 when Worker indicated his
willingness to be treated surgically for the [testicle injury].”

{8}     On appeal, Employer raises three arguments regarding the WCJ’s finding that
Worker was no longer at maximum medical improvement because of his willingness to have
surgery to treat his injured left testicle. Employer argues that the WCJ erred by determining
that (1) Worker’s willingness to have surgery constituted a change of condition under
Sections 52-1-9(B)(1) and 52-1-56 even though his physical or medical condition had not
changed since the WCJ determined he was at maximum medical improvement in the lump
sum order; (2) judicial estoppel did not preclude Worker from arguing that his left testicle
injury had not reached maximum medical improvement at the formal hearing; and (3) the
law-of-the-case doctrine did not preclude Worker’s change of position that he was no longer
at maximum medical improvement.

STANDARD OF REVIEW

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{9}     “All workers’ compensation cases are reviewed under a whole record standard of
review.” Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926.
When our review consists of reviewing a “WCJ’s interpretation of statutory requirements,
we apply a de novo standard of review.” DeWitt v. Rent-A-Ctr., Inc., 2009-NMSC-032, ¶
14, 146 N.M. 453, 212 P.3d 341. We review the WCJ’s application of the law to the facts
de novo. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, ¶ 13, 137 N.M. 497, 113
P.3d 320. However, “[w]here the testimony is conflicting, the issue on appeal is not whether
there is evidence to support a contrary result, but rather whether the evidence supports the
findings of the trier of fact.” Id. (internal quotation marks and citation omitted); Bagwell v.
Shady Grove Truck Stop, 104 N.M. 14, 17, 715 P.2d 462, 465 (Ct. App. 1986).

CHANGE OF CONDITION

{10} Employer first argues that Worker’s testimony that he now wants surgery to treat his
left testicle injury does not constitute a change of condition and, therefore, the WCJ erred
by ruling that Worker was no longer at maximum medical improvement as of December 22,
2011. In Employer’s view, the term “change of condition” refers to a change in a worker’s
medical or physical condition, and Worker presented no testimony that his physical
condition had changed, only that he now wishes to have surgery to address the condition.
Worker’s response is twofold: first, he argues that the lump sum order is not a compensation
order for purposes of Sections 52-5-9(B)(1) and 52-1-56 and, second, that his decision to
have surgery on his left testicle is a change of condition.

{11} Employer premises his argument that the WCJ was required to find that Worker’s
physical or medical condition changed in order to determine that Worker was no longer at
maximum medical improvement on Sections 52-1-56 and 52-5-9(B)(1). Section 52-1-56
provides:

       The [WCJ] may, upon the application of the employer, worker or other
       person bound by the compensation order, fix a time and place for hearing
       upon the issue of claimant’s recovery. If it appears upon such hearing that
       diminution or termination of disability has taken place, the [WCJ] shall order
       diminution or termination of payments of compensation as the facts may
       warrant. If it appears upon such hearing that the disability of the worker has
       become more aggravated or has increased without the fault of the worker, the
       [WCJ] shall order an increase in the amount of compensation allowable as
       the facts may warrant. Hearings shall not be held more frequently than at
       six-month intervals.

In relevant part, Section 52-5-9 provides:

               A.       Compensation orders are reviewable subject to the conditions
       stated in this section upon application of any party in interest in accordance
       with the procedures relating to hearings. The [WCJ], after a hearing, may

                                              4
       issue a compensation order to terminate, continue, reinstate, increase,
       decrease or otherwise properly affect compensation benefits provided by the
       . . . Act . . . .

                B.     A review may be obtained upon application of a party in
       interest filed with the director at any time within two years after the date of
       the last payment or the denial of benefits upon the following grounds:

                       (1)    change in condition[.]

{12} Under these provisions, the Act allows for modification of compensation orders upon
the aggravation of the worker’s disability or upon a change of condition. Employer contends
that the term “change in condition” as used in Section 52-5-9(B)(1) refers only to a “change
in a worker’s medical or physical condition” and is not broad enough to encompass a
situation in which the worker elects to undergo a different treatment option without a change
in his medical condition. See Fasso v. Sierra Healthcare Ctr., 119 N.M. 132, 134, 888 P.2d
1014, 1016 (Ct. App. 1994), overruled on other grounds by Hidalgo v. Ribble Contracting,
2008-NMSC-028, 144 N.M. 117, 184 P.3d 429. Employer additionally states that the case
law construing Section 52-1-56 mandates that the worker’s disability must increase in order
to constitute a change of condition.

{13} We conclude that, although a change of condition must relate to a worker’s physical
or medical condition, a change in condition is broad enough to encompass a situation such
as in this case in which the worker’s physical or medical condition will change due to a
worker’s election to undergo different treatment. Viewed in the context of the Act’s
definition of maximum medical improvement, Worker, by electing to have the surgery, had
a change in his physical condition sufficient to support the WCJ’s conclusion that he was not
at maximum medical improvement. See DeWitt, 2009-NMSC-032, ¶ 14 (“[W]e construe the
provisions of the Act together to produce a harmonious whole.”). The Act defines the date
of maximum medical improvement as “the date after which further recovery from or lasting
improvement to an injury can no longer be reasonably anticipated based upon reasonable
medical probability as determined by a health care provider.” Section 52-1-24.1. The
WCJ’s conclusion that Worker was no longer at maximum medical improvement was based
on evidence that his left testicle injury would improve with surgical treatment. This
conclusion directly implicates and relates to Worker’s physical condition. As such, the WCJ
did not err by determining that Worker had a change of condition for purposes of Section 52-
5-9(B)(1) by electing to undergo surgery on his left testicle and determining that Worker was
no longer at maximum medical improvement.

{14} The cases relied upon by Employer for the proposition that a change in condition
must be based on an aggravation or change to Worker’s physical or medical condition apart
from treatment are inapposite. In Herrera v. Quality Imports, 1999-NMCA-140, ¶ 12, 128
N.M. 300, 992 P.2d 313, this Court held that a change in the worker’s educational status did
not relate to the “disability” or physical condition of the worker and therefore modification

                                             5
under Section 52-1-56 was improper based solely on a change in education status. However,
Herrera expressly declined to determine whether modification would be warranted under
the “change of condition” provision of Section 52-5-9(B)(1). Herrera, 1999-NMCA-140,
¶ 3. Additionally, in this case, Worker’s election to have surgery was tied to his physical
condition and the expected improvement of the condition by undergoing the surgery. The
other cases cited by Employer address substantial evidence issues regarding whether the
worker adequately showed an increase in the disability percentage and therefore justified a
modification of the award and do not stand for any broad propositions limiting what
constitutes a change in condition. See, e.g., Jaramillo v. Consolidated Freightways, 109
N.M. 712, 715, 790 P.2d 509, 512 (Ct. App. 1990) (holding that substantial evidence
supported the WCJ’s conclusion that there was no change in the worker’s physical
condition); Holliday v. Talk of the Town Inc., 98 N.M. 354, 356, 648 P.2d 812, 814 (Ct. App.
1982) (holding that the worker failed to show that his injuries were aggravated and thus
justified an increased award).

JUDICIAL ESTOPPEL

{15} Employer next argues that the WCJ erred by determining that the doctrine of judicial
estoppel did not preclude Worker from arguing that his work-related injuries had not reached
maximum medical improvement at the formal hearing. Employer argues that because
Worker took the position that his injury had reached maximum medical improvement when
he sought and received the partial lump sum payment for future PPD benefits on July 20,
2011, the district court should have determined that judicial estoppel precluded Worker from
claiming that his injuries had not reached maximum medical improvement at the December
22, 2011 formal hearing. We review the proper application of judicial estoppel under an
abuse of discretion standard. Keith v. ManorCare, Inc., 2009-NMCA-119, ¶ 17, 147 N.M.
209, 218 P.3d 1257.

{16} The doctrine of judicial estoppel “prevents a party who has successfully assumed a
certain position in judicial proceedings from then assuming an inconsistent position,
especially if doing so prejudices a party who had acquiesced in the former position.”
Rodriguez v. La Mesilla Constr. Co., 1997-NMCA-062, ¶ 20, 123 N.M. 489, 943 P.2d 136.
The purpose of judicial estoppel is to prevent a party “from playing fast and loose with the
court during the course of litigation.” Citizens Bank v. C & H Constr. & Paving Co., 89
N.M. 360, 366, 552 P.2d 796, 802 (Ct. App. 1976) (internal quotation marks and citation
omitted). Our Supreme Court has stated that

       [t]hree elements must be addressed for a party to prevail under the doctrine
       of judicial estoppel. First, the party against whom the doctrine is to be used
       must have successfully assumed a position during the course of litigation.
       Second, that first position must be necessarily inconsistent with the position
       the party takes later in the proceedings. Finally, while not an absolute
       requirement, judicial estoppel will be especially applicable when the party’s
       change of position prejudices a party who had acquiesced in the former

                                             6
       position.

Santa Fe Pac. Trust, Inc. v. City of Albuquerque, 2012-NMSC-028, ¶ 32, 285 P.3d 595
(internal quotation marks and citation omitted).

{17} It appears that the first two elements exist in this case. Worker took the position that
his injuries were at maximum medical improvement as of the July 20, 2011 order granting
partial lump sum payment for debts and took the inconsistent position that he was no longer
at maximum medical improvement at the formal hearing on December 22, 2011. However,
under the facts and circumstances of this case, judicial estoppel does not apply. First,
Employer fails to show how it was prejudiced by the change of position in this case. At the
time of the interim order, Employer was aware that the matter was still in active litigation
and that a final compensation order based on the formal hearing had not been entered. The
interim order did not prevent Employer from contesting the maximum medical improvement
date at the formal hearing. Most importantly, although the interim order required Employer
to advance $4,200.73 to Worker, the funds were from Worker’s future permanent partial
disability benefits, and Employer received a dollar-for-dollar credit for the advance payment
in the final compensation order. Our cases have generally required the party asserting
judicial estoppel to make a showing of prejudice caused by the opposing party’s change of
position. See, e.g., Guzman v. Laguna Dev. Corp., 2009-NMCA-116, ¶ 15, 147 N.M. 244,
219 P.3d 12 (applying judicial estoppel to bar the defendant from arguing that workers’
compensation was the plaintiffs’ exclusive remedy due to the prejudicial effect of depriving
the plaintiffs of a forum because the defendant previously successfully argued in the
workers’ compensation administration that the claim was outside the scope of the Act).

{18} Second, as we have discussed, the purpose of judicial estoppel is to prevent “a party
from playing fast and loose with the court during litigation.” Santa Fe Pac. Trust, Inc.,
2012-NMSC-028, ¶ 33 (internal quotation marks and citation omitted). Nothing in the
circumstances of this case indicates that Worker was trying to “play fast and loose” with the
WCJ by changing his position about whether his injuries had reached maximum medical
improvement. At the time that Worker requested the partial lump sum payment for future
PPD benefits, his position was that he was at maximum medical improvement because he
had elected to not have surgery on his left testicle injury. At the formal hearing, Worker’s
position was that he was not at maximum medical improvement because he had elected to
have the surgery. Nothing in the record indicates that Worker’s change of position was
designed to mislead the WCJ or otherwise take advantage of the system. Cf. id. ¶ 33 (stating
that “nothing in the record indicates that the [party opposing judicial estoppel] intentionally
attempted to mislead the Court” by changing its position).

LAW OF THE CASE

{19} Employer lastly argues that the law-of-the-case doctrine barred Worker from
changing his position on whether he had reached maximum medical improvement at the
formal hearing because the law of the case is that Worker reached maximum medical

                                              7
improvement by July 20, 2011. We review this issue de novo. See State ex rel. King v. UU
Bar Ranch Ltd. P’ship., 2009-NMSC-010, ¶ 20, 145 N.M. 769, 205 P.3d 816 (stating that
review of “[w]hether law of the case applies, as well as how it applies, are questions of law
subject to de novo review”).

{20} The doctrine of “law of the case . . . relates to litigation of the same issue recurring
within the same suit.” Cordova v. Larsen, 2004-NMCA-087, ¶ 10, 136 N.M. 87, 94 P.3d
830. “Under the law of the case doctrine, a decision on an issue of law made at one stage
of a case becomes a binding precedent in successive stages of the same litigation.” Id.
(internal quotation marks and citation omitted). It is based on “a matter of precedent and
policy; it is a determination that, in the interests of the parties and judicial economy, once
a particular issue in a case is settled it should remain settled.” Trujillo v. City of
Albuquerque, 1998-NMSC-031, ¶ 40, 125 N.M. 721, 965 P.2d 305. The law of the case
doctrine is “discretionary and flexible and is not a doctrine of inflexible law[.]” King, 2009-
NMSC-010, ¶ 21 (internal quotation marks and citations omitted).

{21} In its memorandum opinion accompanying the partial lump sum order for payment
of debts, the WCJ stated that the order “awarding partial lump sum does constitute the law
of the case but that it does not preclude Worker from arguing about a change on maximum
medical improvement status as long as that change is asserted more than six months after
entry of the order.” However, less than six months later, at the formal hearing, Worker
argued that he was not at maximum medical improvement, and the WCJ agreed that Worker
ceased to be at maximum medical improvement on December 22, 2011. Employer’s
argument is two-fold: first, Employer contends that the WCJ violated the WCJ’s own
determination on the law of the case because he miscalculated that six months had not passed
between entry of the July 20, 2011 order and the December 22, 2011 formal hearing.
Second, Employer contends that on a more general level, once the WCJ determined that
Worker was at maximum medical improvement for purposes of granting the partial lump
sum request, the determination becomes law of the case and is conclusively binding on the
parties.

{22} We first address Employer’s contention that the WCJ erred by not following his own
ruling that Worker’s maximum medical improvement determination was law of the case for
the six months subsequent to the order. The WCJ determined that the Act requires that the
maximum medical improvement determination remain the law of the case for six months
because Section 52-1-56 mandates that hearings regarding the diminution, termination, or
increase of benefits “shall not be held more frequently than at six-month intervals.”
However, the change in maximum medical improvement status resulted not from a hearing
conducted pursuant to an application for modification based on Section 52-1-56, but instead
from the evidence presented at the formal hearing on Worker’s claims. We therefore decline
to apply the law of the case doctrine to the determination that Worker’s maximum medical
improvement determination was law of the case for six months. See Trujillo, 1998-NMSC-
031, ¶ 41 (“The application of the law-of-the-case doctrine . . . is discretionary and flexible;
it will not be used to uphold a clearly incorrect decision[.]”).

                                               8
{23} Addressing Employer’s more general contention that once the WCJ determined that
Worker was at maximum medical improvement and issued the lump sum order, the
maximum medical improvement determination became law of the case, we observe that
“[a]lthough it would be grossly inefficient for district courts to review repeatedly their
interlocutory rulings, the law-of-the-case doctrine does not prohibit the practice.” State ex
rel. Udall v. Pub. Employees Ret. Bd., 118 N.M. 507, 510, 882 P.2d 548, 551 (Ct. App.
1994), rev’d on other grounds by 120 N.M. 786, 907 P.2d 190 (1995). For example, in Bell
v. N.M. Interstate Stream Comm’n, 1996-NMCA-010, ¶¶ 12-17, 121 N.M. 328, 911 P.2d
222, this Court held that the law-of-the-case doctrine did not prevent a district court from
overturning its previous interlocutory order denying summary judgment after remand on
appeal. Applying this principle, the WCJ did not err by determining that the law-of-the-case
doctrine did not apply. Based on the facts presented at the hearing, the WCJ determined that
Worker was no longer at maximum medical improvement because Worker elected to have
surgery on his injury. The law-of-the-case doctrine does not require the WCJ to ignore the
facts before it at the time of the formal hearing based on a previous determination of
maximum medical improvement contained in an interim order when the claims raised in
Worker’s complaint were still pending.

CONCLUSION

{24} We hold that the WCJ did not err by determining that Worker had a change of
condition for purposes of Section 52-5-9(B)(1) by electing to undergo surgery on his left
testicle and determining that Worker was no longer at maximum medical improvement. We
further hold that neither judicial estoppel nor the law-of-the-case doctrine bars Worker’s
change of position regarding whether he was no longer at maximum medical improvement
at the time of his formal hearing despite the WCJ’s finding that he was at maximum medical
improvement at the time of the lump sum order. Accordingly, we affirm.

{25}   IT IS SO ORDERED.

                                              ____________________________________
                                              JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

____________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for Laughlin v. Convenient Mgmt. Servs., Inc., No. 32,074

APPEAL AND ERROR

                                             9
Standard of Review

CIVIL PROCEDURE
Estoppel
Law of the Case

WORKERS COMPENSATION
Disability, General
Disability, Partial
Lump Sum Payment
Medical Expenses
Medical Treatment




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