NM Supreme Court Applies IME Statute to Death Benefit Cases

In a well-expressed opinion that illustrates how an appellate court is sometimes required to construe an ambiguous statute, the Supreme Court of New Mexico held that while there was no express provision in the state’s Workers’ Compensation Act specifically addressing expert medical causation testimony in a contested death benefits case, the Act’s independent medical examination (IME) statute [N.M. Stat. Ann. § 52-1-51] should be utilized [Lewis v. Albuquerque Public Schools, 2019 N.M. LEXIS 52 (Nov. 18, 2019)]. In its holding, the New Mexico high court affirmed, in pertinent part, the earlier decision of the state’s Court of Appeals [see Lewis v. Albuquerque Public Schools, 2018-NMCA-049, 424 P.3d 643, cert. granted (S-1-SC-37077, Aug. 15, 2018), but on different grounds.

Background

The facts in the case, though largely undisputed, were relatively complex. In relevant part, the deceased was diagnosed with breast cancer in 1997. During the course of treatment for her breast cancer in 1997, a lung biopsy revealed the presence of aspergillus, but her physicians reported “no residual aspergillus” after the breast cancer treatment and after the cancer went into remission. She began work with the employer in 1999 as a teacher.

The teacher began to receive treatment for respiratory issues in 2011. Subsequent environmental tests indicated she was exposed to aspergillus spores as a result of teaching in a particular room. In October 2012, the teacher was diagnosed with allergic bronchopulmonary aspergillosis (ABPA). She filed a workers’ compensation claim, which was tried in June 2014. In the pretrial order the parties stipulated to the admission of the depositions of the teacher’s medical experts, Dr. Liljestrand and Dr. Tolber. A deposition of the teacher’s oncologist, Dr. Giudice, was also subsequently admitted into evidence without objection.

Teacher’s Death and Subsequent WCJ Compensation Order

On November 11, 2014, one day after a medical visit to Dr. Giudice to address a fever and breathing difficulties, the teacher collapsed and died. On December 6, 2014, the WCJ filed a compensation order, concluding that the teacher had suffered a compensable injury, diagnosed as ABPA, as a result of her exposure to aspergillus while working for the employer during the 2011-2012 school year.

Death Benefits Claim

The teacher’s husband filed a claim for death benefits in January 2015, alleging that ABPA caused the teacher’s death. The death benefits claim went to trial on November 12, 2015. Prior to trial the depositions of Drs. Liljestrand, Tolber, and Giudice were taken again, this time on cause-of-death issues. The WCJ admitted the second depositions of Dr. Tolber and Dr. Liljestrand. However, the WCJ excluded Dr. Giudice’s second deposition and medical records from the New Mexico Cancer Center, ruling that NMSA § 52-1-51(C) barred admission of this evidence because Dr. Giudice was not a “health care provider” described within the statute. Dr. Giudice had treated the teacher for her cancer and not the work-related mold exposure, reasoned the WCJ. In the WCJ’s mind, the statute limited medical testimony only to physicians who had treated her for the mold exposure.

A death certificate, completed by Dr. Liljestrand, was admitted into evidence. The death certificate listed the teacher’s cause of death as “pneumonia” and “chronic pneumonitis.” Dr. Liljestrand testified that ABPA was either a direct or a contributing cause of the teacher’s pneumonia, resulting in chronic pneumonitis. Dr. Tolber in turn testified that the teacher “most likely died of ABPA.” The WCJ issued a death benefits compensation order in favor of the teacher’s survivors in April 2016.

Court of Appeals Opinion

The employer appealed, contending in relevant part that the WCJ erred in excluding Dr. Giudice’s deposition and medical records from the New Mexico Cancer Center because such evidence supported the employer’s position that the teacher died from cancer unrelated to ABPA. The Court of Appeals reversed, holding that NMSA § 52-1-51(C) did not bar the admission of expert medical testimony on the question of causation in a contested death benefits trial under the Act. Finding no other bar to the admission of such evidence, the Court of Appeals remanded the case for a retrial on the causation issue after consideration of all admitted evidence.

Supreme Court Opinion

The Supreme Court agreed with the widower that the result reached by the Court of Appeals supported “the unlimited right of all employers and/or insurers to go ‘testimony-shopping’ and to use any number of experts,” and therefore was “contrary to the legislative intent to limit the use and number of experts.” The Supreme Court stressed that the result under the Court of Appeals opinion was that workers’ compensation death cases must be investigated and tried in the same way as any other case in which the medical cause of death is at issue. The consequential expert witness fees, costs, and time required was not, however, in keeping with the legislative intent for adjudicating workers’ compensation cases. Moreover, said the high court, under the Court of Appeals’ reading of the statute, claimants in death benefits cases would be forced to bear all the burdens present in a civil case to prove medical causation and, at the same time, would be subject to all the restrictions of the Act, including the recovery available for death. The Court concluded that these consequences were all contrary to the purposes and public policy of the Act.

Section 52-1-51 is ambiguous

The “Court went on to say that NMSA § 52-1-51 was ambiguous. Moreover, the record in the case illustrated a circumstance the Legislature did not foresee. The Court concluded that within the context of the legislatively expressed public policy and purposes of the Act, existing statutes provided an answer to the questions raised in the case. According to the Court, Section 52-1-51(A) provided in pertinent part:

In the event of a dispute between the parties concerning [medical care or disability] or any other medical issue, if the parties cannot agree upon the use of a specific [IME] examiner, either party may petition a [WCJ] for permission to have the worker undergo an [IME]” [Opinion, ¶ 41, emphasis by the Court].

In short, while New Mexico case law provided no specific guidance on whether an IME may be conducted after death, such a use was appropriate. The Court stressed that because the worker in a death benefits case is deceased, the expert’s IME necessarily consists of an examination of pertinent medical records and other relevant data in determining the causal relationship if any between the worker’s injury and the worker’s death. The testimony of the independent medical examiner who is agreed upon by the parties or appointed by the WCJ was therefore admissible under Section 52-1-51(C). The Court concluded that that the legal basis on which the Court of Appeals relied to reverse the order of the WCJ was faulty and that the WCJ likewise erred in its interpretation of Section 52-1-51. The case was remanded for further proceedings consistent with the opinion.