NMSC: Independent Medical Examiner Required to Determine Cause of Death in Workers Compensation Claims

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Just before the Thanksgiving holiday the New Mexico Supreme Court released an opinion in a worker’s compensation case, Lewis v. Albuquerque Public Schools. I try to blog about these cases as soon as possible after they are released. I have to admit, however, this one took me some time to wrap my head around. A takeaway for me is that workers compensation is an area with surprising differences from general law or even personal injury law.

In this case Ms. Lewis, a teacher, developed severe respiratory problems as a result of mold in her classroom. This eventually forced her to retire, and she was awarded disability benefits for her injury. Shortly before that award, however, she died. Her husband filed a claim for workers compensation death benefits, arguing the death was a result of the work-related illness. Her employer offered evidence that she died of an unrelated cancer, but the workers’ compensation judge (“WCJ”) excluded it and awarded the death benefits.

This case examines the somewhat surprising rules regarding which health care providers are allowed to testify in a workers compensation case. These rules are less than clear in cases where the worker is injured and later dies. Looking to legislative intent, the Court concluded that an independent medical examiner can determine the cause of death in workers compensation death benefits cases, and remanded the case to the WCJ for further proceedings.

Workers Compensation in New Mexico

To understand this case requires some familiarity with the workers’ compensation system. In New Mexico, workers’ compensation is the exclusive remedy for on-the-job accidents. In other words, a worker cannot sue his employer for an accident at work. Instead, the worker must file a workers’ compensation claim. Employers are required to carry workers’ compensation insurance to cover these claims. Workers compensation provides compensation for lost wages to workers who are injured at work and can also provide benefits to dependents if a worker dies because of a work-related injury.

The workers’ compensation system tries to balance the interests of workers and employers. It seeks to ensure that workers receive prompt care for work-related injuries while providing predictable and reasonable costs to employers. The system tries to avoid the uncertainty of litigation and assure injured workers and their dependents prompt payment of compensation. Finally, it ensures that industry bears the burden of personal injuries suffered by workers in the course of their employment.

One of the ways that the workers compensation system seeks to balance these somewhat conflicting goals is by limiting which health care professionals can participate in the workers care. A patient cannot simply use his own doctor to treat a work related injury. The system greatly restricts a patient’s choice of health care providers: doctors must be willing to take workers compensation patients, and must be designated by the court to work on the case. A health care worker that is not designated will not be paid by the system. And, as is relevant here, that health care worker also will not be allowed to testify in the workers compensation case.

With that background in mind, let’s look at the facts of this case.

The Facts of This Case

Patricia Lewis was a teacher at Manzano High School. She was assigned to teach in a classroom that had a history of roof leaks and mold. She quickly developed respiratory problems. Her doctors informed the school that teaching in the room put her at severe medical risk, that the situation was potentially life threatening, and that the room needed to be professionally cleaned. As you can probably guess, the room was not professionally cleaned and Ms. Lewis had to keep teaching in it.

Ms. Lewis’ health continued to worsen, and eventually her doctor advised her not to return to work. After several months of sick leave, she retired. Shortly thereafter, she filed a claim for workers’ compensation disability benefits. Unfortunately, after the trial but before the court decided the case, Ms. Lewis died.

The WCJ decided the disability benefits case about a month after Ms. Lewis’ death. Because he concluded that her injury had been caused by her exposure to the mold in the classroom, he awarded the disability benefits she had sought. The employer did not appeal this order.

Subsequently, Ms. Lewis’ husband filed a petition for death benefits, alleging that the same injury that caused worker’s disability also caused her death (death and disability being the two main types of benefits available through workers compensation). The WCJ found that exposure in the workplace had caused worker’s death and awarded death benefits. In doing so, however, the WCJ excluded testimony from a treating physician, Dr. Giudice, who was providing chemotheraphy for her breast cancer but was not a designated healthcare provider. The employer had hoped to use that testimony to show that Ms. Lewis’ death was not work-related. The decision to exclude Dr. Giudice’s testimony is the main issue on appeal in this case.

The Court of Appeals

The employer appealed to the New Mexico Court of Appeals on two grounds. First, it argued that the claim for death benefits was barred by the statute of limitations. The court of appeals rejected this argument. Second, it concluded that the district court had erred when it applied Section 52-1-51(C) to exclude Dr. Giudice’s testimony. Because of this error, the court of appeals’ opinion remanded the matter for a retrial on part of the case.

The second issue is the more interesting one in this case. Section 52-1-51(C) governs which health care providers can testify in a workers’ compensation case. It says:

Only a health care provider who has treated the worker pursuant to Section 52-1-49 NMSA 1978 or the health care provider providing the independent medical examination pursuant to this section may offer testimony at any workers’ compensation hearing concerning the particular injury in question.

NMSA 1978, Section 52-1-51(C)

Section 52-1-49 governs which health care providers workers’ compensation will pay for. These providers fall into two categories: designated healthcare providers and independent medical examiners. The statute provides a complicated mechanism for selecting each of them.

The effect of these two statutes is to limit which health care providers can offer testimony in workers’ compensation cases. For example, a treating physician who was not approved by the WCJ generally would not be allowed to testify, even though one would ordinarily expect a treating physician to be an important source of information about a patient. This can be counter-intuitive to lawyers who practice in other areas, but it has been upheld as a method of furthering the purposes of the Workers’ Compensation Act, one of which is to provide an affordable system to compensate workers.

The court of appeals concentrated on the limitation that the testimony must concern “the particular injury in question,” distinguishing the worker’s injury (here, her respiratory illness) from the worker’s death. Using this distinction, the court concluded that the statute limited which doctors could testify about the worker’s injury, not the worker’s cause of death. It therefore remanded for a new trial on whether Ms. Lewis’ work-related injury had caused her death, directing the WCJ to review all admissible evidence.

The Supreme Court

Both sides appealed to the supreme court. The employer again argued that the statue of limitations had run, and that it was error to exclude testimony that would have helped it. The husband argued that it was not an error to exclude the testimony, so no retrial was required. The Court made short work of the statute of limitations argument. The more interesting issue on appeal was whether it was error to exclude the doctor’s testimony.

The WCJ and court of appeals had applied a plain language analysis to the statute, reasoning that the language ” concerning the particular injury in question” meant that it applied to the workplace injury, not a later death caused by that injury. The Court held that this was error: plain language interpretation was not appropriate because the statute was ambiguous.

The ambiguity arises because Section 52-1-51 is difficult to apply in circumstances where the worker has died. Cause of death examinations naturally occur after a worker has died. But designated health care providers treat a patient who is alive. Similarly, the language of Section 52-1-51 for the most part limits the use of IMEs to situations in which the worker is alive. But what if the HCPs who treated the worker in life did not or could not have an opinion as to the cause of death? What if a physician was treating the worker for an illness that might have caused death (for example, the cancer at issue in this case), but was not doing so under the workers compensation system? What if the WCJ needs additional evidence to fully analyze causation? The Court determined that the Act was ambiguous as to these questions, at least in death benefits cases, and that a literal reading of the statute, such as the WCJ adopted here, would lead to absurd results.

Because the Act was ambiguous, the Court looked to policies behind workers compensation to discern the legislative intent. The Act describes its purpose as “to assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to” it. Focusing on the cost aspect of these two competing policies, the Court reiterated its prior caselaw that part of that intent is “to avoid testimony-shopping and to limit the use and number of experts in workers’ compensation cases.”

Under this view, the court of appeals’ ruling could not stand. By holding that Section 52-1-51 did not apply to cause of death testimony, the court of appeals decision made cause of death determinations similar to medical testimony in ordinary litigation, where each party can obtain whatever experts it needs. This adversarial process provides a better opportunity to discover the truth, but it comes at a high price: medical experts are typically expensive. The Court concluded that the legislature could not have meant to approve of such an expensive system in an act devoted in part to keeping costs reasonable.

The question remained, however, of which HCPs can testify as to the cause of death. The Court found a creative way to answer this. Although the Act limits the use of IMEs to a few specific matters, it contains a catchall provision allowing an IME to be used for “any other medical issue” that is in dispute. The Court read this to include cause of death, holding that in death benefits cases, the parties can agree on (or the WCJ can appoint) an IME to determine whether there is a causal connection between the worker’s injury and the worker’s death, and that IME’s testimony would be admissible under Section 51-1-51.

Conclusion

Ultimately, the Court reached a similar result as the court of appeals but on different grounds. The Court implicitly held that the WCJ was correct to exclude Dr. Giudice’s testimony, since he was neither a designated HCP nor an IME. But it remanded for a new trial on causation, strongly implying that on remand an IME should be appointed to testify as to cause of death. And that, ultimately, is the takeaway from this case: when cause of death is at issue in a workers compensation case, the evidence should come from an agreed-upon or court-appointed IME. Although this result seems odd to lawyers in other areas, it strikes me as a solid way to resolve an ambiguous set of statutes.

Workers’ compensation is a strange area of law. In many ways it can seem counter-intuitive or even backwards to lawyers who practice in other areas. Yet it is extremely important: for workplace injuries, it can be the exclusive remedy. I share an office with an excellent worker’s comp attorney, Kevin Holmes, who has helped me get up to speed on workers compensation for this post (although any errors are mine!). If you have been injured at work, I highly recommend him.

Looking for a New Mexico appellate attorney? Contact us or give me a call at (505) 273-9379.

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