Lewis v. Albuquerque Public Schools , 2019 NMSC 022 ( 2019 )

Office of Director New Mexico
11:32:00 2019.12.11 Compilation
'00'07- Commission
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2019-NMSC-022Filing Date: November 18, 2019
No. S-1-SC-37077
MICHAEL D. LEWIS, as Surviving
Spouse of PATRICIA A. LEWIS, deceased,
Claimant-Petitioner/Cross-Respondent,
v.
ALBUQUERQUE PUBLIC SCHOOLS,
Employer-Respondent/Cross-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI
Leonard J. Padilla, Workers’ Compensation Judge
Released for Publication December 17, 2019.
Gerald A. Hanrahan
Albuquerque, NM
for Petitioner and Cross-Respondent
YLAW, P.C.
Michael D. Russell
Matthew L. Connelly
Albuquerque, NM
for Respondent and Cross-Petitioner
OPINION
VIGIL, Justice.
{1} This case involves death benefits under the Workers’ Compensation Act (the
Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017). Following the
death of Patricia Lewis (Worker), her widower Michael Lewis (Petitioner) was awarded
death benefits under the Act. The Workers’ Compensation Judge (WCJ) based the
award on the finding that Worker, while employed with Albuquerque Public Schools
(Employer), contracted allergic bronchopulmonary aspergillosis (ABPA) which
proximately resulted in Worker’s death.
{2} Employer appealed the award to the Court of Appeals. Lewis v. Albuquerque
Public Schools, 2018-NMCA-049, ¶ 1, 424 P.3d 643, cert. granted (S-1-SC-37077, Aug.
15, 2018). The Court of Appeals in pertinent part arrived at two conclusions. First, the
Court held that the WCJ correctly rejected Employer’s argument that Petitioner’s claim
for death benefits was time-barred. Id. ¶¶ 20, 29; see § 52-1-46 (stating that “if an
accidental injury sustained by a worker proximately results in the worker’s death within
the period of two years following the worker’s accidental injury, compensation shall be
paid” subject to the statutory provisions). Second, the Court concluded that the WCJ
erred in excluding from evidence certain medical testimony and records which Employer
contended related to Worker’s cause of death. Lewis, 2018-NMCA-049, ¶ 54. The Court
reasoned that the limitation on expert testimony in workers’ compensation cases
contained in Section 52-1-51(C) does not apply to medical causation evidence in a
death benefits case under the Act. Lewis, 2018-NMCA-049, ¶¶ 37, 54; see Section 52-
1-51(C) (stating that “at any workers’ compensation hearing concerning the particular
injury in question,” testimony may “[o]nly” be offered by a “health care provider who has
treated the worker pursuant to [the Act] or a health care provider providing the
independent medical examination [IME] pursuant to this section”). The Court of Appeals
therefore remanded the case for retrial on whether Worker’s ABPA “‘proximately
result[ed]’” in her death. Lewis, 2018-NMCA-049, ¶ 54 (alteration in original) (quoting §
52-1-46).
{3} We granted certiorari. On the first issue, we agree with the Court of Appeals that
Petitioner’s claim for death benefits was not time-barred, and we affirm. On the second
issue concerning the WCJ’s exclusion of medical testimony and evidence on Worker’s
cause of death, we hold that the Court of Appeals erred in its interpretation of Section
52-1-51(C), but we agree based on our own interpretation of Section 52-1-51(C) that the
case must be remanded for further proceedings. In all other respects, we affirm the
opinion of the Court of Appeals.
{4} This case involved two trials. The first was for compensation benefits for Worker,
who died before the compensation order was filed. Employer did not appeal from the
award of compensation benefits, and Petitioner filed the claim for death benefits after
Worker died. In its answer to the death benefits claim, Employer admitted as binding all
the findings of fact and conclusions of law entered in the previously tried compensation
case. In addition, in the pretrial order for the death benefits trial the parties stipulated
that the findings of fact and conclusions of law set forth in that compensation order were
the “law of the case” in the death benefits trial.
I. BACKGROUND
A. Facts
{5} Worker was diagnosed with breast cancer in 1997. During the course of
treatment for her breast cancer in 1997, a biopsy of Worker’s lung tissue revealed the
presence of aspergillus, but her physicians reported “no residual aspergillus” after the
breast cancer treatment and after the cancer went into remission.
{6} Worker started working for Employer as a teacher at Manzano High School in
1999. At the beginning of the 2011-2012 school year, Worker was assigned to teach art
classes in room J-13. Room J-13 had a history of roof leaks and a “clay trap” which, by
appearances, was lined with mold. Worker, who suffered from asthma, began
experiencing respiratory problems soon after she started teaching in room J-13 and
notified her supervisors and appropriate personnel of the respiratory problems she was
having from working in room J-13.
{7} Worker began treatment for her respiratory problems with Dr. John Liljestrand on
October 3, 2011. Dr. Liljestrand was of the opinion that Worker’s increased respiratory
problems were related to her working in room J-13. Dr. Liljestrand wrote two letters to
Employer, on December 8, 2011, and on January 10, 2012, informing Employer that
Worker was suffering from severe asthma which was exacerbated by her exposure to
dust and environmental allergens in her new classroom. Dr. Liljestrand was of the
opinion that Worker was being subjected to a significant medical risk and recommended
that she be permanently removed from her new classroom because the situation was
becoming quite severe and potentially life threatening.
{8} Worker was exposed to aspergillus spores as a result of teaching in room J-13.
On July 10 and July 16, 2012, Employer tested the air quality both inside and outside
room J-13. Aspergillus is ubiquitous in the environment, particularly in soil. However,
more aspergillus spores were collected inside room J-13 than outside room J-13. On
July 10, seventy-eight percent of all collected spores (447 aspergillus spores) were
found in the air inside room J-13, and on July 16, seventy-seven percent of all collected
spores (453 aspergillus spores) were found in the air inside room J-13. Worker and her
health care providers repeatedly requested professional cleaning of room J-13. The
room was cleaned but by school janitors rather than a professional cleaning crew.
{9} Prior to Employer’s testing of air quality, Dr. Liljestrand referred Worker to Dr.
Steven Tolber, a board certified allergist and immunologist, for further treatment of her
respiratory problems. Dr. Tolber’s pulmonary function testing on April 26, 2012,
revealed a “pulmonary obstruction” that required treating Worker with supplemental
oxygen at the emergency room. Worker continued to require oxygen at four liters per
minute for twenty-four hours per day until Worker died. On May 16, 2012, Dr. Tolber
wrote a letter to Employer emphasizing “the severity of [Worker’s] disease” and stating
that Worker “may not return to working” in room J-13, that failing to remove her from
room J-13 placed Worker “at risk of worsening lung function,” and that failing to remove
Worker from room J-13 “may put those responsible for keeping her in this room at legal
risk for worsening her case.”
{10} On October 22, 2012, Dr. Tolber diagnosed Worker with ABPA, caused by
Worker’s exposure to aspergillus mold in room J-13. Dr. Tolber believed that Worker’s
ABPA from 1997 had gone into remission but that exposure to aspergillus in room J-13
aggravated her condition and caused an ABPA relapse. Dr. Tolber referred Worker to
Dr. Ronald Bronitsky, a pulmonologist, for evaluation. Dr. Bronitsky had no
disagreements with the opinions of Dr. Tolber concerning Worker and gave his own
opinion that it was very reasonable to conclude that aspergillus spores in room J-13
contributed to Worker’s respiratory state. Dr. Tolber also referred Worker to the National
Jewish Hospital in Denver, Colorado, where she received a level of care not available in
New Mexico.
{11} In February 2012, while being treated for ABPA, Worker was diagnosed with
breast cancer that had been in remission since 1997. Subsequently, Worker began
chemotherapy with Dr. Richard Giudice, an oncologist at the New Mexico Cancer
Center.
{12} Worker continued to work and earn her regular salary through December 21,
2012, when Dr. Tolber deemed Worker disabled and advised her not to return to work.
Worker continued to receive her regular wage through available sick leave until March
31, 2013, when she retired.
B. The Compensation Case
{13} Worker filed a claim for workers’ compensation disability benefits on March 6,
2013, alleging that her exposure to aspergillus mold in room J-13 resulted in her ABPA
and ensuing disability. Worker’s claim was tried over two days beginning on June 4,
2014. In the pretrial order the parties stipulated to the admission of the depositions of
Dr. Liljestrand and Dr. Tolber. Dr. Giudice’s deposition was also subsequently admitted
into evidence without objection.
{14} On November 11, 2014, Worker saw Dr. Giudice to address a fever and
breathing difficulties, although a chest x-ray taken that day did not reveal pneumonia.
Worker had an appointment with Dr. Giudice the next day, but as she was leaving home
that morning to go to the hospital, Worker collapsed and died. No autopsy was
performed.
{15} The WCJ filed the compensation order on December 16, 2014, after Worker had
died. The WCJ concluded as follows, in pertinent part. (1) “Worker suffered a
compensable injury, diagnosed as ABPA, as a result of her exposure to aspergillus
while working for Employer during the 2011-2012 school year.” (2) “Worker’s ABPA
arose out of, was in the course of, and was reasonably incident to Worker’s employment
with Employer.” (3) “The medical evidence establishes a causal connection between
Worker’s employment and her ABPA.” (4) “Due to ABPA, Worker has been unable to
perform the duties of a high school teacher.” The WCJ also determined that Worker was
entitled to temporary total disability (TTD) benefits compensation beginning on April 1,
2013, through January 15, 2014, and to permanent partial disability (PPD) benefits “for
700 weeks” beginning on January 16, 2014. Employer did not appeal from this
compensation order.
C. The Death Benefits Case
{16} Petitioner filed a claim for death benefits on January 22, 2015, alleging ABPA
caused Worker’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 Section 52-1-
51(C) barred admission of this evidence because Dr. Giudice was not a health care
provider described in Section 52-1-51(C).
{17} Worker’s death certificate, completed by Dr. Liljestrand, was admitted into
evidence. The death certificate listed Worker’s cause of death as “pneumonia” and
“chronic pneumonitis.” Dr. Liljestrand testified that ABPA was either a direct or a
contributing cause of Worker’s pneumonia, resulting in chronic pneumonitis. Dr. Tolber
in turn testified that Worker “most likely died of ABPA.”
{18} The WCJ issued a death benefits compensation order on April 21, 2016. The
WCJ concluded as follows, in pertinent part. (1) “Worker suffered a compensable injury,
diagnosed as ABPA, as a result of her exposure to aspergillus while working for
Employer during the 2011-2012 school year.” (2) “Worker’s injury manifested itself on
April 1, 2013.” (3) “Worker’s death on November 12, 2014, occurred within two years of
April 1, 2013.” (4) “Expert medical testimony establishes a causal connection between
Worker’s death and her A[BP]A.” (5) “[Petitioner] is entitled to death benefits pursuant to
[Section] 52-1-46.”
D. The Court of Appeals Opinion
{19} Employer appealed the death benefits compensation order to the Court of
Appeals, arguing that the WCJ erred (1) in concluding that the death benefits claim was
not time barred because Worker’s death occurred within two years of her compensable
injury and (2) in excluding Dr. Giudice’s deposition and medical records from the New
Mexico Cancer Center because this evidence supported its position that Worker died
from cancer unrelated to ABPA. Lewis, 2018-NMCA-049, ¶ 1. In a formal opinion, the
Court of Appeals held the following, among others. (1) “Worker knew or should have
known she had a compensable injury on April 1, 2013, which is within two years of
Worker’s death on November 12, 2014.” Id. ¶ 21. (2) “[T]he limitations period of Section
52-1-46 was not triggered until Worker knew or should have known she had an injury
entitling her to . . . disability benefits.” Id. ¶ 25. (3) “Section 52-1-51(C) does not limit
expert testimony regarding the circumstances and cause of a worker’s death in
connection with a claim for death benefits . . . .” Id. ¶ 54. (4) The WCJ erred in its
calculation of weekly death benefits. Id. ¶¶ 55-59.
{20} Both parties ask us to reverse the Court of Appeals. Employer asks us to reverse
the holding that the claim for death benefits was timely, and Petitioner asks us to
reverse the holding that the WCJ erred in excluding the testimony of Dr. Giudice and the
medical records from the New Mexico Cancer Center. We granted both petitions.
II. DISCUSSION
A. Standard of Review
{21} “In reviewing a WCJ’s interpretation of statutory requirements, we apply a de
novo standard of review.” Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 14, 146
N.M. 453, 212 P.3d 341. “With respect to the admission or exclusion of evidence, we
generally apply an abuse of discretion standard where the application of an evidentiary
rule involves an exercise of discretion or judgment, but we apply a de novo standard to
review any interpretations of law underlying the evidentiary ruling.” Id. ¶ 13.
B. Timeliness of Petitioner’s Claim
{22} Section 52-1-46 provides in pertinent part that death benefits shall be paid “if an
accidental injury sustained by a worker proximately results in the worker’s death within
the period of two years following the worker’s accidental injury[.]” Employer argues that
Worker’s death on November 12, 2014, occurred more than two years after her work-
related injury, which began shortly after her exposure to aspergillus mold in August
2011, and that as a result, Petitioner failed to file his claim for workers’ compensation
death benefits within the two-year time period prescribed by Section 52-1-46. Employer
therefore contends that the Court of Appeals erred in affirming the order of the WCJ
finding that the claim was timely. We disagree.
{23} In Torres v. Plastech Corp., 1997-NMSC-053, ¶ 11, 124 N.M. 197, 947 P.2d 154,
we stated that the triggering event under Section 52-1-31(A), the statutory limitations
period under which a worker must file a claim for workers’ compensation, has two
elements: “an injury entitling the worker to compensation under the Act” and
“knowledge, or imputed knowledge, by the worker of this injury.” Thus, the limitation
period does not begin to run until the disability occurs and thereby entitles the worker to
benefits under the Act, even if the worker is aware that an injury was suffered earlier. Id.Although Torres considered a different statute of limitations than the statute of
limitations for death benefits under Section 52-1-46, the Court of Appeals in Gambrel v.
Marriott Hotel, 1991-NMCA-100, ¶¶ 12-13, 112 N.M. 668, 818 P.2d 869, considered
when an accidental injury occurs under Section 52-1-46 and concluded that the two-
year limit for bringing a death benefits claim is triggered when the worker knows or
should know that the worker has suffered an injury and when the worker’s injury is
compensable under the Act. We approve and follow Gambrel here.
{24} The undisputed finding made by the WCJ in the compensation case, which
Employer stipulated was binding in the death benefits case, is that Worker became
entitled to TTD benefits on April 1, 2013, when her sick leave was exhausted.
Therefore, under Torres and Gambrel, the triggering date was April 1, 2013. Worker
died on November 12, 2014, less than two years later. We hold that Petitioner’s death
benefits claim was timely under Section 52-1-46.
C. Expert Testimony in a Death Benefits Case
{25} The WCJ relied solely on Section 52-1-51(C) as the basis for excluding Dr.
Giudice’s testimony and the New Mexico Cancer Center records. This statute directs,
“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 [IME] pursuant to this section may
offer testimony at any workers’ compensation hearing concerning the particular injury in
question.” The WCJ ruled that Worker’s death “concern[s] the particular injury in
question,” and because Dr. Giudice was not a treating provider under the Act and had
not performed an IME, his testimony was barred by Section 52-1-51(C).
{26} On appeal, the Court of Appeals focused its inquiry on the meaning of the phrase
“the hearing concerning the particular injury in question” in Section 52-1-51(C). Lewis,
2018-NMCA-049, ¶ 37. The Court of Appeals noted the distinction between treating a
worker’s injuries while the worker is alive and determining the cause of a worker’s death
after the worker has died. See id. ¶ 38. After analyzing Sections 52-1-49 and 52-1-
51(C), id., ¶¶ 38-48, the Court of Appeals concluded that “Section 52-1-49’s and Section
52-1-51’s provisions for selection of [health care providers] and IME examiners,
respectively, are confined to the treatment and assessment of work-related injuries” and
therefore that “it is absurd to identify them as the exclusive universe of witnesses who
can testify about the cause or causes of a worker’s death.” Id. ¶ 49. The Court of
Appeals held that Section 52-1-51(C) does not limit expert testimony to that given by a
health care provider who has provided care for a worker’s work-related injury pursuant
to Section 52-1-49 or by an IME examiner identified pursuant to Section 52-1-51(A) in a
contested claim for death benefits under Section 52-1-46. Id. ¶ 54.
{27} Petitioner argues that the Court of Appeals should be reversed because failure to
limit expert testimony on worker cause of death is “contrary to the plain meaning of
Section 51-1-5(C).” Employer responds, “There is nothing in the statute, other relevant
sections of the Act, or any other controlling authority that demonstrates an intent of the
Legislature to subject the limitation set forth in Section 52-1-51(C) to a medical expert’s
cause of death determination under Sections 52-1-46 and -47.” Echoing the reasoning
of the Court of Appeals, Employer asserts that Section 52-1-51(C) applies only to “the
particular injury in question” and not to “expert medical testimony concerning the cause
of a worker’s death” which, it contends, is an entirely different question.
{28} We conclude that these arguments all find some support in the Act but that none
adequately address how the Legislature intended for expert medical testimony to be
obtained and presented in a contested death benefits case. To answer that question,
we first examine the elements of a death benefits claim under the Act. We then
demonstrate why Section 52-1-51 is ambiguous and, by construing that ambiguity,
answer how the Act provides for obtaining and presenting expert medical testimony in a
contested death case.
1. Elements of a death benefits claim
{29} A death benefits claim arises under Section 52-1-46 which provides in pertinent
part, “[I]f an accidental injury sustained by a worker proximately results in the worker’s
death within the period of two years following the worker’s accidental injury,
compensation” must be paid to “eligible dependents.” A death benefits claim is “a
separate cause of action, not derivative of the action worker could have maintained for
compensation had he survived.” Gambrel, 1991-NMCA-100, ¶¶ 7, 14 (citing A. Larson,
2A The Law of Workmens’ Compensation, § 64.10-11). As such, a death benefits claim
must satisfy the requirements set forth in Section 52-1-28(A). This statute provides that
claims for workers’ compensation “shall be allowed only: (1) when the worker has
sustained an accidental injury arising out of and in the course of his employment; (2)
when the accident was reasonably incident to his employment; and (3) when the
disability is a natural and direct result of the accident.”
{30} In the December 16, 2014, compensation order awarding Worker TTD and PPD
benefits, the WCJ concluded that “Worker suffered a compensable injury, diagnosed as
ABPA, as a result of her exposure to aspergillus while working for Employer during the
2011-2012 school year” and “Worker’s ABPA arose out of, was in the course of, and
was reasonably incident to Worker’s employment with Employer.” Importantly, Employer
did not appeal from this compensation order and, in the death benefits case, agreed
that all findings of fact and conclusions of law in the compensation order were binding in
the death benefits case. The quoted conclusions establish that Worker’s “accidental
injury” was the ABPA she contracted as a result of her exposure to aspergillus while
working for Employer, thereby satisfying the first two elements of Section 52-1-28(A).
{31} Section 52-1-28(A)(3) has two parts. That is, there must be proof of a “disability”
which “is a natural and direct result of the accident.” Turning first to the “disability”
requirement, our case law establishes that the worker’s death is analyzed as the
“disability” in a death benefits case. See Oliver v. City of Albuquerque, 1987-NMSC-
096, ¶ 4, 106 N.M. 350, 742 P.2d 1055. The Oliver trial court awarded death benefits
when a firefighter died as a result of a heart attack at work. Id. ¶ 1. This Court held that
Section 52-1-28(A) “requires that a worker’s disability [death] be causally connected to
the worker’s injury [heart attack] and that the injury be causally connected to the
worker’s accident (the stress induced by [the worker’s] job . . .).” Oliver, 1987-NMSC-
096, ¶ 4; see also Grine v. Peabody Nat. Res., 2006-NMSC-031, ¶¶ 1, 37, 140 N.M. 30,
139 P.3d 190 (remanding a death benefits appeal to the WCJ and requiring the
petitioner to show employer knowledge of the worker’s employment-related stress, the
accident resulting in an on-the-job heart attack (injury) that caused the worker’s death
(disability)); Herman v. Miners’ Hospital, 1991-NMSC-021, ¶ 15, 111 N.M. 550, 807
P.2d 734 (“In a workers’ compensation case where a dependent seeks benefits based
on the worker’s death by heart attack, the death is analyzed as the disability, the heart
attack as the injury, and the employment-related stress as the accident.”).
{32} Turning next to causation, a claimant is required to prove that the worker’s
“disability is a natural and direct result of the accident.” Section 52-1-28(A)(3). This
requirement is contained in Section 52-1-46 which provides for death benefits “if an
accidental injury sustained by a worker proximately results in the worker’s death[.]” In
this case, because Employer denied liability for Worker’s death, Petitioner was required
to prove by expert medical evidence a causal connection between Worker’s ABPA (the
“accidental injury”) and her death (the “disability”). See § 52-1-28(B) (“In all cases where
the employer or his insurance carrier deny that an alleged disability is a natural and
direct result of the accident, the worker must establish that causal connection as a
probability by expert testimony of a health care provider[.]”); Grine, 2006-NMSC-031, ¶¶
19, 26 (requiring under Section 52-1-28(B) that when the employer has denied
causation in a death benefits claim, a claimant must prove, by expert medical testimony,
a causal connection between the employment and the worker’s injury and death);
Herman, 1991-NMSC-021, ¶ 7 (same); Turner v. N.M. State Highway Dep’t, 1982-
NMCA-097, ¶ 4, 98 N.M. 256, 648 P.2d 8 (requiring the same under the 1959
enactment of Section 52-1-28(B)).
{33} We now arrive at the dispute between the parties at trial and on appeal.
Petitioner offered the testimony of Dr. Liljestrand and Dr. Tolber to establish the
requisite causal connection between Worker’s ABPA and death. Employer in turn
offered the testimony of Dr. Giudice and associated medical records to support its
contention that Worker died as a result of cancer unrelated to ABPA. That is to say,
Employer offered this evidence to support its contention that there was no causal
relationship between Worker’s ABPA and her death. Petitioner objected, arguing that
under the literal language of Section 52-1-51(C), the evidence was inadmissible. The
WCJ agreed and excluded the evidence. The Court of Appeals reversed, holding that
Section 52-1-51(C) does not bar the admission of expert medical testimony on the
question of causation in a contested death benefits trial under the Act. Lewis, 2018-
NMCA-049, ¶ 54. 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.” Id. ¶¶ 54, 60.
{34} We agree with Petitioner that the result reached by the Court of Appeals supports
“the unlimited right of all employers and/or insurers to go ‘testimony-shopping’ and to
use any number of experts,” and is therefore “contrary to the legislative intent to limit the
use and number of experts.” The result under the Court of Appeals opinion is 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 is not in keeping with the legislative intent
for adjudicating workers’ compensation cases. Moreover, claimants in death benefits
cases are thereby forced to bear all the burdens present in a civil case to prove medical
causation and, at the same time, are subject to all the restrictions of the Act, including
the recovery available for death. As discussed below, we conclude that these
consequences are all contrary to the purposes and public policy of the Act.
2. Section 52-1-51 is ambiguous
{35} Section 52-1-51(C) states, “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 [IME] pursuant to this section” may testify “at any workers’ compensation hearing
concerning the particular injury in question.” Consistent with Oliver, Grine, and Herman
and the undisputed findings of fact and conclusions of law in the compensation case,
the “particular injury in question” was Worker’s ABPA. Under Section 52-1-51(C),
whether Worker’s ABPA was causally related to Worker’s death clearly related to and
therefore “concern[ed]” Worker’s ABPA.
{36} However, a cause of death determination is necessarily made after death occurs,
and a health care provider who treated the worker pursuant to Section 52-1-49 treated
the worker while the worker was alive. In addition, the designated medical issues for
which a worker can be required to undergo an IME under Section 52-1-51(A)⸻“a
dispute between the parties concerning the reasonableness or necessity of medical or
surgical treatment, the date upon which maximum medical improvement was reached,
the correct impairment rating for the worker, [or] the cause of an injury”⸻apply to a
living worker. Additional sections pertaining to an IME also relate to a living person. See
§ 52-1-51(A) (stating that either party may petition “to have the worker undergo an
[IME]”); § 52-1-51(E) (requiring the worker to travel to where the IME will be conducted
and providing for the worker to be reimbursed for necessary and reasonable expenses);
§ 52-1-51(H) (providing for penalties if the worker fails or refuses to submit to the IME).
For these reasons, the Court of Appeals concluded, “[IME] examiners can be appointed
only to address concerns relating to the provision of medical care or disability
benefits⸻that is, matters arising while the worker is alive.” Lewis, 2018-NMCA-049, ¶
44. We conclude that this is where the Court of Appeals erred.
{37} Section 52-1-51 is ambiguous and fails to provide answers to several questions.
What happens, for example, if a health care provider who treated a worker pursuant to
the Act has no opinion on whether there is a causal connection between the worker’s
injury and death? What if no autopsy was performed? It is impossible for us to conclude
that the Legislature granted “eligible dependents” the right to pursue death benefits
under the Act and at the same time prevented the “eligible dependents” from being able
to present evidence in support of the claim. In addition, what happens if, as in this case,
a health care provider was treating a worker at the time of the worker’s death for an
illness that may bear on causation, but the treatment was for an injury that was not
pursuant to the Act? What happens if, as in this case, a health care provider has an
opinion on causation, but the employer has other medical evidence to contest that
opinion? What happens if the WCJ, as the fact finder, requires additional expert
testimony to fully analyze the causation issue?
{38} In concluding that an IME under Section 52-1-51 refers only to “living workers,”
Lewis, 2018-NMCA-049, ¶ 44, followed the “plain meaning” rule. See State ex rel.
Helman v. Gallegos, 1994-NMSC-023, ¶ 2, 117 N.M. 346, 871 P.2d 1352 (summarizing
the “plain meaning” rule: “State statutes are to be given effect as written and, where
they are free from ambiguity, there is no room for construction; where the meaning of
statutory language is plain, and words used by the legislature are free from ambiguity,
there is no basis for interpreting the statute.” (internal quotation marks and citation
omitted)). However, as discussed above, Section 52-1-51 is ambiguous, and a literal
application of its terms leads to absurd results, contrary to the intent of the Legislature.
3. Presenting expert testimony under Section 52-1-51
{39} Our primary and fundamental duty in construing statutes is to give effect to
legislative intent. United States v. Reese, 2014-NMSC-013, ¶ 19, 326 P.3d 454 (“Our
guiding principle when we construe statutes is” to “determine and effectuate the
Legislature’s intent in enacting the statute.”). In the performance of this duty, we have
long held that “[c]ourts will not add words except where necessary to make the statute
conform to the obvious intent of the legislature, or to prevent its being absurd.” State v.
Nance, 1966-NMSC-207, ¶ 16, 77 N.M. 39, 419 P.2d 242, abrogated on other grounds,
State v. Wilson, 2011-NMSC-001, ¶¶ 14-16, 149 N.M. 273, 248 P.3d 315. “But where
the language of the legislative act is doubtful or an adherence to the literal use of words
would lead to injustice, absurdity or contradiction, the statute will be construed
according to its obvious spirit or reason, even though this requires the rejection of words
or the substitution of others.” Id.; see also, State ex rel. Brandenburg v. Sanchez, 2014-
NMSC-022, ¶ 4, 329 P.3d 654 (“We should not allow a literal plain reading of a statute
to confound the legislative intent, and therefore, our inquiry does not end with the plain
meaning of the words.”); Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047(stating that the plain language of a statute is the primary indicator of legislative intent
but that if “‘the plain meaning of the statute is doubtful, ambiguous, or . . . an adherence
to the literal use of the words would lead to injustice, absurdity or contradiction, we will
construe the statute according to its obvious spirit or reason’” (citation omitted));
Cummings v. X-Ray Assocs. of N.M., 1996-NMSC-035, ¶ 45, 121 N.M. 821, 918 P.2d
1321 (“We will not rest our conclusions upon the plain meaning of the language [in a
statute] if the intention of the legislature suggests a meaning different from that
suggested by the literal language[.]”).
{40} As in Grine, 2006-NMSC-031, ¶ 19, “We believe the record in this case illustrates
a circumstance the Legislature did not foresee.” There is no express provision in the Act
specifically addressing expert medical causation testimony in a contested death benefits
case. For guidance on how the Act provides an answer, we look to the legislatively
expressed purposes and policies of the Act and to the existing statutes. Section 52-5-1
states that the purpose of the Act is “to provide a workers’ benefit system . . . 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 [the Act]” NMSA
1978, § 52-5-1(1990). In other words, the purpose of the Act “is to provide an
humanitarian and economical system of compensation to the injured workman.” Casillas
v. S.W.I.G., 1981-NMCA-045, ¶ 9, 96 N.M. 84, 628 P.2d 329. “The economic purpose is
to keep an injured workman and his family at least minimally secure financially.” Id. ¶
10. “The Act may be seen as a social contract between employer and employee in
which the former agrees to pay under a no-fault system and the latter agrees to pursue
only those benefits provided for under the Act.” Archer v. Roadrunner Trucking, Inc.,
1997-NMSC-003, ¶ 7, 122 N.M. 703, 930 P.2d 1155. Under the Act, “[t]he injured
worker receives compensation quickly, without having to endure the rigors of litigation or
prove fault on behalf of the employer.” Salazar v. Torres, 2005-NMCA-127, ¶ 5, 138
N.M. 510, 122 P.3d 1279, rev’d on other grounds sub nom., 2007-NMSC-019, ¶ 1, 141
N.M. 559, 158 P.3d 449. In keeping with these principles, this Court has previously
declared, “We are sensitive to the obvious intent of the Legislature to avoid testimony-
shopping and ‘to limit the use and number of experts in workers’ compensation cases.’”
Dewitt, 2009-NMSC-032, ¶ 35 (citation omitted).
{41} We conclude, in the context of the legislatively expressed public policy and
purposes of the Act, that existing statutes provide an answer to the questions raised
here. Section 52-1-51(A) states 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].” (Emphasis added.) The
statute continues, “If a [WCJ] believes that an [IME] will assist the judge with the proper
determination of any issue in the case, including the cause of the injury, the [WCJ] may
order an [IME] upon the judge’s own motion.” (Emphasis added.) In the context of a
contested death benefits case, an issue concerning “disability” (i.e., death) or its cause
is, without question, a “medical issue” and an “issue in the case.”
{42} Thus, while Section 52-1-51(A) might, as interpreted by the Court of Appeals, be
construed as applying only to living persons, the statutory terms “any other medical
issue” and “any issue in the case” are broad enough to encompass the medical cause
of death of a worker. We therefore construe Section 52-1-51(A) to mean that in a
contested death benefits workers’ compensation case, the parties can agree upon an
IME examiner to perform an IME, and the WCJ has authority to order an IME on the
motion of a party or on its own motion. “The IME shall be performed immediately,” § 52-
1-51(A), and the employer must pay for the IME, § 52-1-51(B). The purpose of such an
IME is to determine the causal connection, if any, between the worker’s injury and the
worker’s death.
{43} While New Mexico case law provides no specific guidance on whether an IME
may be conducted after death, an IME is recognized as a means for determining cause-
of-death issues. See Turner v. Workmen’s Comp. Appeals Bd., 42 Cal. App.3d 1036,
1039 (Ct. App. 1974) (ordering an IME in response to a party’s moving the appeals
board to reconsider the decision in the trial of a death benefits case where the referee
heard conflicting reports on the worker’s cause of death); Bingham v. Workmen’s Comp.
Appeals Bd., 261 Cal. App.2d 842, 845-46 (Ct. App. 1968) (same); In re Capalbo v.
Stone & Webster Const. Servs., 91 A.D.3d 1263, 1263 (N.Y. App. Div. 2012) (allowing
the employer to submit an IME report contesting causation after the workers’
compensation law judge found prima facie evidence that the worker’s death was
compensable); but see Ponca City Pub. Sch. v. Ritcheson, 853 P.2d 782, 786-87 (Okla.
Civ. App. 1993) (holding that the trial court’s appointment of an IME examiner at the
employer’s request to determine causation in a death benefits case “was not required”).
{44} 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 is therefore admissible under Section 52-
1-51(C).
{45} We hold 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.
III. CONCLUSION
{46} We affirm in part and reverse in part the opinion of the Court of Appeals, and we
remand the case to the WCJ for further proceedings in accordance with this opinion.
{47} IT IS SO ORDERED.
MICHAEL E. VIGIL, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
BARBARA J VIGIL, Justice
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice