Lewis v. Albuquerque Pub. Sch.

424 P.3d 643

Michael D. LEWIS, as surviving spouse of Patricia A. Lewis, deceased, Claimant-Appellee/Cross-Appellant,

v.ALBUQUERQUE PUBLIC SCHOOLS, Employer-Appellant/Cross-Appellee.

No. A-1-CA-35584

Court of Appeals of New Mexico.

Filing Date: April 30, 2018

Certiorari Granted, August 15, 2018, No. S-1-SC-37077

Gerald A. Hanrahan, Albuquerque, NM, for Claimant-Appellee

Yenson, Allen & Wosick, P.C., Matthew L. Connelly, Michael D. Russell, Albuquerque, NM, for Employer-Appellant

BOHNHOFF, Judge.

{1} Patricia Lewis (Worker) sought and obtained an award of workers' compensation disability benefits after she contracted Allergic Bronchopulmonary Aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with Albuquerque Public Schools (Employer). Following Worker’s death, her widower, Michael Lewis (Claimant), sought and the Workers' Compensation Judge (WCJ) awarded workers' compensation death benefits under the Workers' Compensation Act (the Act), NMSA 1978, 52-1-1 to 52-1-70 (1929, as amended through 2017). On appeal, Employer makes four arguments: (1) the WCJ erred in concluding that Worker’s death occurred within two years of her compensable work injury, and thus that the death benefits claim was not barred by the applicable statute of limitations; (2) the WCJ erred in excluding medical records and testimony that supported Employer’s position that Worker died as a result of cancer unrelated to the ABPA; (3) related to the second issue, the WCJ erred in finding that Claimant’s medical evidence regarding the cause of Worker’s death was uncontradicted; and (4) even if Claimant was entitled to death benefits, the amount of benefits that the WCJ awarded was erroneous. Claimant cross appeals, arguing that the WCJ erred by not awarding death benefits at 100% of Worker’s compensation rate. We affirm on Employer’s first argument, reverse on the second and third arguments, and affirm on the fourth argument. We reverse on Claimant’s cross-appeal argument. We remand for a new trial on whether Worker’s ABPA caused Worker’s death.

BACKGROUND

{2} Worker was employed by Employer from 1999 until 2013 and taught at Manzano High School in Albuquerque, New Mexico for a number of years. At the beginning of the 2011-2012 school year, she was assigned to teach classes in a new classroom, Room J-13. Worker complained to Employer about the presence of mold in Room J-13. Her primary care physician, Dr. John Liljestrand, began treating her for difficulty breathing on October 3, 2011. Dr. Liljestrand wrote to Employer in December 2011 advising that Worker’s respiratory problems were attributable to her classroom. Thereafter, Dr. Liljestrand referred Worker to Dr. Steven Tolber, an allergist and immunologist who was already treating Worker, to be treated for her respiratory issues. Dr. Tolber began treating her for respiratory issues related to exposure to mold in Room J-13 on April 18, 2012.

{3} Dr. Tolber wrote a letter to Employer at the end of the 2011-2012 school year that stated Worker could not return to Room J-13. On October 22, 2012, Dr. Tolber diagnosed Worker with ABPA and stated that the ABPA was caused by Worker’s exposure to aspergillus mold in her classroom. Worker regularly continued to work and earn her regular salary until December 21, 2012. From December 22, 2012 to March 31, 2013, Worker drew upon available sick leave time and thus did not lose any pay. Worker terminated her employment with Employer by retiring effective March 31, 2013.

{4} During this same general time period, Worker faced another medical condition. She had been treated for breast cancer in 1997, but the disease had been in remission until late 2012 when it was discovered to be metastatic. Worker began chemotherapy in 2013 that continued into 2014. Worker’s oncologist was Dr. Richard Giudice of the New Mexico Cancer Center.

{5} Worker filed a claim for workers' compensation disability benefits on March 6, 2013. She alleged that her continued exposure to aspergillus mold after she started working in Room J-13 caused her disability.

{6} Worker’s claim for disability benefits was tried over the course of two days in June 2014. The parties stipulated that Worker’s employment with Employer ended on March 31, 2013, and that she had not earned her weekly wage since then. During the trial, the WCJ admitted into evidence the depositions and medical records of Dr. Liljestrand and Dr. Tolber. The WCJ also admitted Dr. Giudice’s February 21, 2014 deposition.

{7} The WCJ issued his compensation order on December 16, 2014. He made the following findings, among others: (1) Worker was exposed to aspergillus spores while teaching in her classroom at Manzano High School; (2) On October 22, 2012, Dr. Tolber diagnosed Worker with ABPA; and (3) Worker’s ABPA was caused by her exposure to aspergillus in Room J-13. The WCJ specifically found that

[t]here is a causal connection between Worker’s accidental injury (ABPA) and her resulting disability and the injury is reasonably incident to Worker’s exposure to aspergillus in [Room] J-13 ... Worker’s accidental exposure to aspergillus arose out of, and occurred within the course and scope of, Worker’s employment with Employer ... Worker’s ABPA and resulting disability [were] a natural and direct result of her exposure to aspergillus while working for Employer.

{8} Additionally, the WCJ found that "[d]ue to ABPA, Worker [was] unable to perform the duties of high school teacher since April 1, 2013." The WCJ awarded Worker Temporary Total Disability (TTD) benefits from April 1, 2013 to January 15, 2014. The WCJ also found that Worker suffered a compensable injury with permanent impairment and that Worker was entitled to Permanent Partial Disability (PPD) benefits of 99% from January 16, 2014 and continuing for 700 weeks. Employer did not appeal the December 16, 2014 compensation order.

{9} Dr. Liljestrand last saw Worker in March 2014. Dr. Tolber last saw Worker in September 2014. Worker continued, however, to be seen by Dr. Giudice and receive treatment for her cancer.

{10} Dr. Tolber’s notes of Worker’s appointments with him on May 14, 2014 and May 29, 2014 reflect concern about "fluid overload" and shortness of breath, and whether those issues were attributable to the chemotherapy. On September 23, 2014, Worker was advised by the New Mexico Cancer Center that her white blood cell count was low due to the chemotherapy. Worker had additional appointments at the New Mexico Cancer Center on October on the 4, 7, and 21, 2014 and November 11, 2014. Worker was seen by Dr. Giudice on October 21 and November 11, 2014. On November 11, 2014, Worker complained of shortness of breath, but a chest x-ray taken that day did not reveal pneumonia. Worker was to return to Dr. Giudice the next day for further examination and treatment. While leaving her home to go to the hospital the morning of November 12, 2014, Worker collapsed and died. No autopsy was performed.

{11} Worker’s disability benefits terminated upon her death. Section 52-1-47(C).¹ Claimant filed a claim for workers' compensation death benefits on January 22, 2015 alleging that Worker’s ABPA was the cause of her death. In its answer to the death benefits complaint, Employer admitted all of the findings of fact and conclusions of law contained in the first compensation order. Employer further admitted that the findings and conclusions in the first compensation order were binding on the death benefits proceeding. However, Employer disputed the timeliness of the death benefits claim and the cause of death. The WCJ issued a pre-trial order on October 30, 2015 indicating that prior WCA orders entered during the disability benefits proceeding on May 18, 2014 and December 16, 2014 established the law of the case as to the death benefits trial.

{12} The death benefits claim was tried on November 12, 2015. Claimant testified. In addition, the WCJ admitted Claimant’s exhibits, which included the additional depositions of Dr. Tolber and Dr. Liljestrand that were taken on October 14 and August 20, 2015, respectively, and Worker’s certificate of death, which was prepared by Dr. Liljestrand. The death certificate listed "pneumonia" and "chronic pneumonitis" as the causes of death. Dr. Liljestrand testified that Worker’s ABPA was either a direct or a contributing cause of these conditions. Dr. Tolber testified that Worker "most likely died of ABPA."

{13} At the death benefits trial, Employer offered into evidence, among other exhibits, the February 21, 2014 deposition of Dr. Giudice—which had been admitted without objection during the first disability benefits trial. Employer also offered into evidence a second deposition of Dr. Giudice taken after Worker had passed away dated September 14, 2015. Claimant, however, objected to admission of the Giudice depositions and records, arguing that, under Section 52-1-51(C), only a health care provider (HCP) who has provided care for a worker’s work-related injury pursuant to Section 52-1-49, or an independent medical examiner identified pursuant to Section 52-1-51(A), could testify as to the cause of death in connection with a claim for death benefits under Section 52-1-46. Because Dr. Giudice was neither an authorized HCP under Section 52-1-49 nor an independent medical examiner under 52-1-51(A), Claimant urged, he could not testify about Worker’s cause of death. The WCJ agreed with Claimant and denied admission of the Giudice depositions and the New Mexico Cancer Center records.

{14} In his 2015 deposition, when asked to identify the documentation that he reviewed to determine Worker’s cause of death, Dr. Liljestrand could not verify that he reviewed any documentation. Instead, his cause of death determination was based on a discussion with Claimant. Dr. Liljestrand had not reviewed any information from the New Mexico Cancer Center regarding the treatment Worker had received in the fall of 2014, including on November 11. Similarly, in his 2015...