NMSC: Independent medical examination may be ordered in workers’ compensation death benefits cases

Patricia Lewis was a teacher for the Albuquerque Public Schools. She contracted allergic bronchopulmonary aspergillosis (ABPA) from mold in her classroom in 2011. In 2012, she was also diagnosed with breast cancer and began chemotherapy with an oncologist.

She died in 2014, and her personal representative sought death benefits under the Workers’ Compensation Act, arguing that ABPA was the cause of her death. The employer sought to introduce testimony from the oncologist in support of its contention that the ABPA did not cause her death.

The personal representative argued that the oncologist’s testimony was NMSA 1978, Section 52-1-51(C), which provides that “[o]nly 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.” The personal representative argued that the oncologist had not treated her ABPA, and that he could not perform an independent medical examination because Ms. Lewis was now deceased.

In Lewis v. Albuquerque Public Schools (opinion by Justice Michael Vigil) held that NMSA 1978, Section 52-1-51(A) provides that a workers’ compensation judge can appoint an independent medical examiner in the event of a dispute about “any other medical issue” in a workers’ compensation case, and that this language was broad enough to support the appointment of an independent medical examiner in a death benefits case. Therefore, the testimony of the independent medical examiner would be admissible under Section 52-1-51(C).

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