Lewis v. Albuquerque Pub. Sch.

453 P.3d 445

Michael D. LEWIS, as Surviving Spouse of Patricia A. Lewis, deceased, Claimant-Petitioner/Cross-Respondent,

v.ALBUQUERQUE PUBLIC SCHOOLS, Employer-Respondent/Cross-Petitioner.

NO. S-1-SC-37077

Supreme Court of New Mexico.

Filing Date: November 18, 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

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, 424 P.3d 643. 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, 424 P.3d 643 ; 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, 424 P.3d 643 (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 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...