FROM THE WORKERS' COMPENSATION ADMINISTRATION Reginald C.
Woodard, Workers' Compensation Judge
Ortiz Albuquerque, NM for Appellant.
Thornton & Baehr PC M. Scott Owen Albuquerque, NM for
MILES HANISEE, Judge.
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.
of Worker's Prior Injury
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.
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
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.
March 11, 2014, Work-Related Accident and Subsequent Medical
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
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
Orthopaedic Surgeon's Causation Opinion
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.
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.
Worker's followup visit on July 17, 2014, Dr. Carothers
[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
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
Workers' Compensation Complaint
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."
Carothers' Deposition Testimony
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.
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  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  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.
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  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.
redirect, Dr. Carothers was asked, "Is it your opinion
that the work accident in March  hastened the need for
the total hip replacement surgery?" Dr. Carothers
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 . But he's been needing hip
replacement for years.
to state his causation opinion based on a reasonable degree
of medical probability, Dr. Carothers stated, "So I
would say his fall in March  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.
Complaint Seeking Benefits
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.
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."
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." 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 ...