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Molinar v. Larry Reetz Construction, Ltd.

Court of Appeals of New Mexico

August 17, 2017

JAIME MOLINAR, Worker-Appellant,

         APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Reginald C. Woodard, Workers' Compensation Judge

          LeeAnn Ortiz Albuquerque, NM for Appellant.

          Butt Thornton & Baehr PC M. Scott Owen Albuquerque, NM for Appellees.


          J. MILES HANISEE, Judge.

         {1} Worker Jaime Molinar appeals a decision of the Workers' Compensation Judge (WCJ) denying Worker's claim for permanent partial disability (PPD) and medical benefits based on the WCJ's finding that Worker's disability was not caused by his work-related accident. Worker argues that his work-related accident aggravated a preexisting condition, resulting in his PPD, thus entitling him to PPD and medical benefits, as well as mileage reimbursement for travel associated with his medical appointments. Worker also claims that the Workers' Compensation Administration (WCA) violated NMSA 1978, Section 52-1-54(M) (2013) of the Workers' Compensation Act (the Act) by paying Employer/Insurer attorney fees prior to the settlement or adjudication of Worker's claim. We reverse and remand for proceedings consistent with this opinion.


         History of Worker's Prior Injury

         {2} Worker suffered a non-work-related injury (femoral neck fracture) to his right hip in 2002 that required installation of hip screws and a side plate in his right hip. Worker recovered from his 2002 injury and began working shortly thereafter as a carpenter for Larry Reetz Construction, Ltd. (Employer).

         {3} In November 2006 Worker began to experience pain in his leg, specifically in the right thigh/hip area where he experienced the femoral neck fracture in 2002. He was seen at the University of New Mexico Hospital (UNMH) six times between 2006 and 2011 to address his pain. During Worker's 2006 visit, Worker's treating physician noted that Worker had "right hip posttraumatic arthritis" and that the arthritis was "in the initial stage[.]" In February 2007 Worker was diagnosed with avascular necrosis (AVN) of the right femoral neck, and a total hip replacement was discussed. Worker did not proceed with hip replacement surgery for economic reasons. In January 2008 Worker returned to UNMH due to "significant pain in his right hip especially with ambulation and work." At that time, total hip replacement was recommended. Worker was again seen in July 2008, at which time a total hip replacement was again recommended and Worker was referred for a preoperative evaluation, which never occurred. Upon Employer's request in 2008, Worker disclosed his preexisting condition of a "bad hip" to Employer and agreed to submit to a medical examination if required. Worker did not return to UNMH until June 2010, when he was given an injection to manage his worsening pain because he indicated that he could not afford to be off work in order to have the total hip replacement surgery. In February 2011 Worker was ready to undergo surgery because he "could not continue to work due to pain." Worker's treating physician at that time described Worker's condition as "posttraumatic degenerative joint disease of the right hip, end-stage." Worker had a preoperative evaluation, and surgery was scheduled. However, Worker never had the surgery, did not seek additional medical care for his hip after his 2011 visit to UNMH, and continued to work for Employer "at full duty" until March 11, 2014, when Worker suffered an on-the-job injury.

         {4} According to Employer's president, Larry Reetz, Worker was "a dependable employee" who did "good work" and is an "honest individual." Mr. Reetz testified that Worker did not frequently call in sick nor was Worker a problem from the standpoint of absenteeism. He would have been aware, but was not, had Worker, at some time during his employment, requested an extended period of time off due to his preexisting hip condition. Similarly, Mr. Reetz had no memory of Worker declining to perform a job or task based upon his preexisting condition.

         Worker's March 11, 2014, Work-Related Accident and Subsequent Medical Treatment

         {5} On March 11, 2014, Worker fell from the third step of a ladder while working at one of Employer's job sites, landing on his right side (March 2014 accident). Worker was referred by Employer to its health care provider, Concentra Medical, where he was seen by Steve Cardenas, P.A. Worker reported an "intense pain in [his] hip" with a pain level of 10/10 and was initially diagnosed with a "contusion of [the] thigh, " prescribed pain medication and crutches, and instructed not to work. Worker returned to work when he was released to modified duty on May 8, 2014, then allowed to lift up to fifty pounds. Worker continued to work within the restrictions imposed by his treating physicians until July 12, 2014, when Worker's pain became so debilitating that he was no longer able to continue his employment. Worker has not since returned to work.

         {6} Worker continued to receive treatment at Concentra and was eventually prescribed use of a cane because Worker "just could not ambulate without it. He needed the support because his pain was so bad." Worker also continued to be prescribed pain medication to manage his pain and was referred to physical therapy, which he reported was ineffective.

         Worker's Orthopaedic Surgeon's Causation Opinion

         {7} Employer's insurer, Builders Trust of New Mexico (Insurer), referred Worker to New Mexico Orthopaedics, where worker was first seen by Dr. Arnold Kiburz on June 9, 2014. Dr. Kiburz noted that Worker's "current condition is very likely related to his initial fall and right hip fracture in a somewhat remote past" but also stated that his "symptoms are consistent with [the] reported work injury." Dr. Kiburz then referred Worker to his colleague Dr. Joshua Carothers because of Dr. Carothers' specialization in hip replacement surgery.

         {8} Dr. Carothers first saw Worker on July 8, 2014, four days before Worker was no longer able to work. On that date, Dr. Carothers noted in Worker's chart that "[Worker] broke his hip back in 2002 and underwent open reduction and internal fixation." As to his observations based on his examination of Worker's right hip, Dr. Carothers noted:

Radiographs of the right hip reviewed today reveal severe joint space narrowing[.] There is a [two] hole dynamic hip screw and side plate with a derotation screw. The hardware appears to be in good position however there has been [AVN] of the femoral head with severe collapse. This is consistent with Ficat stage IV.

         At Worker's followup visit on July 17, 2014, Dr. Carothers noted:

[T]he changes in the hip are rather chronic and I believe that the [AVN] has been long-standing and predated the injury. The patient was having pain prior to his fall and I believe that he had a well[-]compensated condition of the hip that was allowing him to function with occasional and relatively minimal discomfort. I believe that the fall disrupted [the] tenuous balance of the hip and has resulted in an aggravation of the hip and more constant and more debilitating pain.

         In response to a question from Insurer's claims department asking him to "[p]lease state to a reasonable degree of medical probability, if the need for a left right necrotic revision and right hip replace[ment is] related to [Worker's] 3/11/14 loss[, ]" Dr. Carothers stated: "I believe that the AVN was present prior to the 3/11/14 fall but the fall aggravated the condition and worsened the pain."

         Employer/Insurer's Workers' Compensation Complaint

         {9} Employer/Insurer filed a complaint with the WCA on August 8, 2014, seeking a determination of compensability and benefits related to Worker's March 2014 accident and injury. Employer/Insurer challenged Dr. Carothers' causation opinion that Worker's fall "aggravated" Worker's "necrosis condition." Specifically, Employer/Insurer stated that Dr. Carothers' opinion was "highly suspect" because Dr. Carothers had not reviewed Worker's prior medical records and could not "pinpoint when the necrosis of the right femur head began without reviewing prior x-rays." Therefore, Employer/Insurer requested that the parties be allowed to depose Dr. Carothers in order to "provide [Dr. Carothers] with all pertinent medical records" because, Employer/Insurer argued, "Dr. Carothers' opinion cannot establish causation, at least not until he has reviewed all pertinent information."[1]

         Dr. Carothers' Deposition Testimony

         {10} The parties deposed Dr. Carothers on November 5, 2014. When asked by Worker during his deposition what he meant by the phrase "aggravation of the hip" in his July 17 notes, Dr. Carothers explained:

So my assessment of this is that the severity of his hip did not result from his fall in March. I believe that it-the downward spiral of his hip[-]began with his trauma and fracture in 2002 and he has likely been dealing with or coping with a bad hip for a longer period of time and his symptoms worsened as a result of the fall. But I believe that his hip was in end[-]stage arthritis related to [AVN] prior to the fall.

         During its examination of Dr. Carothers, Employer/Insurer presented Dr. Carothers with Worker's UNMH medical records from 2006-2011. After reviewing the records and being asked whether "there has been a change in your opinion as to aggravation, causation with respect to the initial fall and March [2014] fall[, ]" Dr. Carothers stated:

So like I attempted to make clear, I think [Worker's] condition of his hip relates to his initial fall in 2002. I would have expected him to have pain long before the fall in March [2014] as is demonstrated by the notes from UNM[H;] however, there is a [three]-year gap between the last UNM[H] note and the New Mexico Orthopedic notes, so he obviously didn't have a total hip replacement [and] has been making d[o]. So the difficulty is [Worker has] been making d[o], he has another fall at work, now he is not making d[o]. So it's reasonable to say that the fall could have aggravated the condition of his hip, but by [and] large his symptoms, his hip pain are stemming from the original injury.

         When asked by Employer/Insurer whether he had "an opinion as to whether or not the need for the total hip [replacement] is related to the initial fall versus the March [2014] fall[, ]" Dr. Carothers responded:

The need for a total hip [replacement] was established by the initial fall, the injury, the sub congeal-or the [AVN], and the resultant severe arthritis. The need for it at this moment may be related to his aggravated symptoms.

         On redirect, Dr. Carothers was asked, "Is it your opinion that the work accident in March [2014] hastened the need for the total hip replacement surgery?" Dr. Carothers responded:

That's a difficult question because he's been contemplating hip replacement for it sounds like the past five or six years. And, as I made clear in my notes, his hip has been existing in a tenuous balance being able to deal with the severity of his hip arthritis. So I would still maintain that the need for hip replacement now may be related to that fall from March [2014]. But he's been needing hip replacement for years.

         Asked to state his causation opinion based on a reasonable degree of medical probability, Dr. Carothers stated, "So I would say his fall in March [2014] prompted him to seek a hip replacement at that time or within the next few months" and explained that his opinion was "based on the symptoms reported" to him by Worker.

         Worker's Complaint Seeking Benefits

         {11} On December 9, 2014, Worker filed a complaint with the WCA, seeking temporary total disability (TTD), PPD, and medical benefits. In support of his complaint, Worker relied on Dr. Carothers' testimony regarding causation between Worker's March 2014 accident and his disability. Specifically, Worker contended that:

Dr. Carothers stated that the fall at work aggravated Worker's preexisting condition and worsened his pain. Dr. Carothers also stated that there was a [three]-year gap in medical records immediately prior to the fall at work on March 11, 2014[, ] indicating that Worker was making due regarding his hip condition. Notably, Worker has been working as a carpenter for this Employer the last [eight] years. Dr. Carothers state[d] that the fall at work prompted Worker to seek a hip replacement.

         Worker included Dr. Carothers' deposition testimony with his complaint as well as Dr. Carothers' earlier form letter in which he had opined that Worker's March 2014 fall "aggravated the condition and worsened the pain."

         {12} Employer/Insurer answered the complaint and raised as affirmative defenses that Worker was not hurt on the job, Worker was not disabled as a result of the March 2014 accident, and Worker failed to establish a causal link between the March 2014 accident and his disability to a reasonable medical probability. Employer/Insurer continued to challenge Dr. Carothers' causation opinion as being "not valid" and "deficien[t]" based on Worker's inclusion of Dr. Carothers' form letter as an attachment to his complaint, which Employer/Insurer noted Dr. Carothers provided before he was deposed and, therefore, before he "had all pertinent medical information."[2] Employer/Insurer also argued that Dr. Carothers' testimony failed to establish a causal link between the March 2014 accident and Worker's disability because "Dr. Carothers testified that ...

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