MICHAEL D. LEWIS, as surviving spouse of PATRICIA A. LEWIS, deceased, Claimant-Appellee/Cross-Appellant,
ALBUQUERQUE PUBLIC SCHOOLS, Employer- Appellant/Cross-Appellee.
FROM THE WORKERS' COMPENSATION ADMINISTRATION Leonard J.
Padilla, Workers' Compensation Judge
A. Hanrahan Albuquerque, NM for Claimant-Appellee
Yenson, Allen & Wosick, P.C. Matthew L. Connelly Michael
D. Russell Albuquerque, NM for Employer-Appellant
M. BOHNHOFF, JUDGE.
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 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.
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.
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
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.
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,
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.
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
Dr. Lilj estrand 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
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.
Worker's disability benefits terminated upon her death.
Section 52-1-47(C).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
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."
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.
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 deposition, Dr. Tolber acknowledged
that he had not reviewed any of the records of Worker's
care and treatment at the New Mexico Cancer Center from March
2014 to November 2014. All of the information that Dr. Tolber
had concerning how Worker died was provided by Claimant. When
asked what he knew about the circumstances of her death, Dr.
Tolber testified only to what he had been told about
Worker's shortness of breath and that he had "not
seen the [results] on the autopsy, so I don't know."
On April 21, 2016, the WCJ issued his compensation order
concerning the death benefits claim. The order makes the
following findings: (1) "Worker established a causal
connection between the ABPA and her place of
employment"; (2) "As a result of a compensable
injury, Worker was awarded compensation benefits"; (3)
Dr. Liljestrand found that Worker's ABPA was either a
direct cause or a contributing cause of what he listed on
Worker's death certificate for causes of death; (4) Dr.
Tolber testified that Worker "most likely died of
ABPA"; (5) "There is a causal connection between
Worker's ABPA and her resulting death"; (6)
"The medical evidence and testimony establishing
causation is uncontradicted"; (7) "Compensation
benefits for death are payable to eligible dependents 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"; (8)
"The two year time limit for bringing a claim for death
benefits begins to accrue from the date the compensable
injury manifests itself or from when the worker knows or
should know [s]he has suffered a compensable injury";
(9) "Due to ABPA, Worker was unable to perform the
duties of high school teacher beginning on April 1,
2013"; (10) "Worker's injury manifested itself
on April 1, 2013"; and (11) "Worker's death on
November 12, 2014, occurred within two years of April 1,
Worker's Death Occurred Within Two Years of Her
Compensable Injury; Claimant's Claims Therefore Are Not
Standard of Review
workers' compensation cases are reviewed under a whole
record standard of review." Moya v. City of
Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175
P.3d 926. "On appeal, to determine whether a challenged
finding is supported by substantial evidence, we have always
given deference to the fact[-]finder, even when we apply....
whole record review." DeWitt v. Rent-A-Center,
Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d
341 (internal quotation marks and citation omitted).
"The reviewing court starts out with the perception that
all evidence, favorable and unfavorable, will be viewed in
the light most favorable to the agency's decision."
Tallmanv.ABF (Arkansas Best Freight), 1988-NMCA-091,
¶18, 108 N.M. 124, 767 P.2d 363. However, we "may
not view favorable evidence with total disregard to
contravening evidence."Id. ¶ 13 (internal
quotation marks and citation omitted). "The possibility
of drawing two inconsistent conclusions from the evidence
does not mean the agency's findings are unsupported by
substantial evidence." Id. ¶ 15.
"Substantial evidence on the record as a whole is
evidence demonstrating the reasonableness of an agency's
decision . . . and we neither reweigh the evidence nor
replace the fact finder's conclusions with our own."
DeWitt, 2009-NMSC-032, ¶ 12 (citation omitted).
our review consists of reviewing a WCJ's interpretation
of statutory requirements, we apply a de novo standard of
review." Laughlin v. Convenient Mgmt. Servs.,
Inc., 2013-NMCA-088, ¶ 9, 308 P.3d 992 (internal
quotation marks and citation omitted). "We review the
WCJ's application of the law to the facts de novo."
52-1-46 states in part that, subject to certain limitations
enumerated within the statute, death benefits shall be paid
"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[.]" For purposes of this case, the key language
is the phrase "accidental injury[, ]" which is the
triggering event for the limitations period. We review de
novo the WCJ's interpretation of this phrase as well as
the application of the law to the facts to determine when
Worker's accidental injury occurred. Laughlin,
2013-NMCA-088, ¶ 9.
Worker's Death Occurred Within Two Years of ...