52-1-51.  Physical examinations of worker; independent medical examination; unsanitary or injurious practices by worker; testimony of health care providers.

Amendment Notes. 

The 2005 amendment, effective July 1, 2005, rewrote the first sentence in Subsection A, which read: “In the event of a dispute concerning any medical issue, if the parties cannot agree upon the use of a specific independent medical examiner, either party may petition a workers’ compensation judge for permission to have the worker undergo an independent medical examination”; added the second sentence in Subsection A; in Subsection D, substituted “either party” for “the injured worker” and “other party” for “employer” in the first sentence, and “shall exercise” for “should exercise” in the last sentence; in Subsection E, deleted “the employer requests” following “If” and inserted “is requested” following “section” in the first sentence, and substituted “employer” for “party requesting the examination” in the last sentence; and made minor stylistic changes.

The 2013 amendment, effective July 1, 2013, substituted “other party” for “worker” in the first sentence of (D).

Notes to Decisions

      Generally.

Since a worker's claim accrued prior to the effective date of the 2005 amendment, only the 1997 version of Subsection A of this section applied. Brashar v. Regents of the Univ. of Cal., 2014-NMCA-068, 327 P.3d 1124, 2014 N.M. App. LEXIS 28 (N.M. Ct. App.), cert. denied, 328 P.3d 1187, 2014 N.M. LEXIS 244 (N.M. 2014).

Physician's testimony was not admissible pursuant to former Subsection A of this section where he had examined the worker before she filed her workers' compensation claim, and thus his evaluation was not an independent medical examination (IME), there was no dispute as to a medical issue among authorized health care providers when the physician examined the worker, and there was no evidence of any formal agreement between the parties that the physician was to conduct an IME. Brashar v. Regents of the Univ. of Cal., 2014-NMCA-068, 327 P.3d 1124, 2014 N.M. App. LEXIS 28 (N.M. Ct. App.), cert. denied, 328 P.3d 1187, 2014 N.M. LEXIS 244 (N.M. 2014).

      Appeal.

Order allowing change of health care provider was not final and appealable; therefore, worker’s appeal or the order was dismissed without prejudice for lack of jurisdiction. Murphy v. Strata Prod. Co., 2006-NMCA-008, 138 N.M. 809, 126 P.3d 1173, 2005 N.M. App. LEXIS 157 (N.M. Ct. App. 2005).

      Applicability.

      Compensation.

In a workmen’s compensation case, the court did not err in directing that if the claimant agreed, his employer and its insurer should furnish an operation, and in retaining jurisdiction to increase compensation payments if justified after the results of the surgery could be appraised. Yanez v. Skousen Constr. Co., 1968-NMSC-034, 78 N.M. 756, 438 P.2d 166, 1968 N.M. LEXIS 1896 (N.M. 1968), overruled,  American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030, 1977 N.M. LEXIS 1060 (N.M. 1977).

      Construction.

While the evidence established that the worker never did home exercises, nothing in the record established that the worker was ever prescribed a specific home exercise program by any of her health care professionals; as the worker was never instructed to perform any specific exercises, she could not have acted in spite of opposition, importunity or warning, and thus the workers’ compensation judge erred in finding that the worker had persisted in an injurious practice. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085, 308 P.3d 983, 2013 N.M. App. LEXIS 45 (N.M. Ct. App. 2013).

      Discovery.

Although 52-1-51G NMSA 1978 requires the claimant be furnished with a copy of an independent medical report, failure to comply does not automatically require a continuance. An employer and insurer’s failure to provide the report was not reversible error; error to be reversible must be prejudicial. Sanchez v. National Elec. Supply Co., 1986-NMCA-109, 105 N.M. 97, 728 P.2d 1366, 1986 N.M. App. LEXIS 684 (N.M. Ct. App. 1986).

      Discretion.

Workers’ compensation judge who found injurious practices under 52-1-51I NMSA 1978 had discretion to reduce or suspend the injured employee’s benefits only; the finding did not allow the workers’ compensation judge to reduce the impairment rating under 52-1-24A NMSA 1978. Chavarria v. Basin Moving & Storage, 1999-NMCA-032, 127 N.M. 67, 976 P.2d 1019, 1999 N.M. App. LEXIS 3 (N.M. Ct. App. 1999).

Trial court did not improperly award workmen’s compensation benefits for a permanent partial disability to an employee’s foot before an end medical result had been reached due to the employee’s refusal to undergo further surgery; though former 59-10-20, 1953 Comp. provided the trial court discretion to reduce or suspend compensation when a claimant refused medical or surgical treatment that was reasonably essential to promote the claimant’s recovery, the employee’s doctor testified that the employee had a present permanent partial disability and the employee testified that prior surgeries on his foot that had taken place after the employee’s toe had been amputated did not do anything to help. Dudley v. Ferguson Trucking Co., 1956-NMSC-052, 61 N.M. 166, 297 P.2d 313, 1956 N.M. LEXIS 1065 (N.M. 1956).

      Error.

Worker’s request for an independent medical examination under 52-1-51A NMSA 1978 was improperly denied by a workers’ compensation judge where the worker established that a bona fide dispute existed among authorized health care providers concerning a medical issue related to the worker’s care and treatment. Gutierrez v. J & B Mobile Homes, 1999-NMCA-007, 126 N.M. 494, 971 P.2d 1284, 1998 N.M. App. LEXIS 167 (N.M. Ct. App. 1998).

      Evidence.

Where there was evidence that a workers’ compensation claimant was unable to fully participate in physical therapy because of incapacitating pain that was not of his own making and there was evidence that it was reasonable for patients not to fully participate in physical therapy under these circumstances, there was sufficient evidence to uphold the decision not to reduce or suspend the claimant’s compensation pursuant to 52-1-51C NMSA 1978. Crespin v. Consolidated Constructors, 1993-NMCA-109, 116 N.M. 334, 862 P.2d 442, 1993 N.M. App. LEXIS 107 (N.M. Ct. App.), cert. denied, 116 N.M. 334, 862 P.2d 442, 1993 N.M. LEXIS 315 (N.M. 1993).

      Expert.

Where a worker was required, under 52-3-32 NMSA 1978, to establish the causal connection between her disability and her work as a medical probability by medical expert testimony, the trial court erred in finding that testimony by the worker’s treating physician was inadmissible; the treating physician is one of the health care professionals specifically permitted to testify under 52-3-39C NMSA 1978 and 52-1-51C NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMCA-016, 133 N.M. 199, 62 P.3d 290, 2002 N.M. App. LEXIS 108 (N.M. Ct. App. 2002), aff'd, 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014, 2003 N.M. LEXIS 227 (N.M. 2003).

Workers’ compensation formal hearing judge did not err in admitting a treating doctor’s records regarding an injured worker into evidence even where the treating doctor was unqualified to testify based on his status as an unauthorized health care provider under 52-1-51C NMSA 1978 or in allowing a subsequent treating doctor to base his testimony on those records under Rule 11-703 NMRA, which allowed the subsequent treating doctor who testified as an expert to base his testimony on otherwise inadmissible evidence. Lopez v. City of Albuquerque, 1994-NMCA-122, 118 N.M. 682, 884 P.2d 838, 1994 N.M. App. LEXIS 122 (N.M. Ct. App.), cert. denied, 118 N.M. 533, 882 P.2d 1046, 1994 N.M. LEXIS 392 (N.M. 1994).

      Independent medical examination.

Independent medical examination (IME) report admitted as stand-alone evidence concerning a worker's medical condition constitutes hearsay subject to no exceptions in the rule, statutes or regulations; therefore, it was error to rate a worker's permanent impairment at zero percent where a finding of maximum medical improvement (MMI) was based on an inadmissible IME report. Since the only evidence supporting the determination that the worker had reached MMI with an impairment rating of zero percent was the inadmissible report, there was no substantial evidence to support the conclusions made. Valenzuela v. A.S. Horner, Inc., 2016-NMCA-031, 367 P.3d 901, 2016 N.M. App. LEXIS 3 (N.M. Ct. App. 2016), cert. denied, No. 35754, 2016 N.M. LEXIS 69 (N.M. Mar. 10, 2016).

Workers’ compensation judge did not abuse its discretion by refusing to postpone a trial a second time in order to accommodate appellants’ request for an independent medical examination; the judge reasonably could have found that appellants’ request for a continuance was untimely, and a delay in the commencement of the trial would be prejudicial to the employee. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070, 2010 N.M. App. LEXIS 151 (N.M. Ct. App. 2010).

It was error for a workers’ compensation judge to hold that a worker was entitled to a six-month periodic review by his own physician under Subsection D of this section, because the statute’s plain language grants that right to employers only. Flores v. J.B. Henderson Constr., 2003-NMCA-116, 134 N.M. 364, 76 P.3d 1121, 2003 N.M. App. LEXIS 76 (N.M. Ct. App. 2003).

Where a worker’s pre-employment physical examination did not reveal any problems with her knees but, when she fell, X-rays revealed chronic advanced arthritis of the knee for which there had been no prior treatment, the employer’s doctor recommended the knee replacement surgery, but the employer did not agree with the diagnosis of its own doctor and, therefore, sought an independent medical examination (IME), the workers’ compensation judge was without authority under 52-1-51A NMSA 1978 to order an IME because there was no dispute concerning any medical issue or the propriety or course of treatment, which would have allowed for an IME, but concerned causation, which was not a medical issue as contemplated by the IME statute; the judge did not have discretion to order an IME on its own motion, and his confusion over medical records was not sufficient under the statute to create the authority for ordering an IME. Ramirez v. IBP Prepared Foods, 2001-NMCA-036, 130 N.M. 559, 28 P.3d 1100, 2001 N.M. App. LEXIS 32 (N.M. Ct. App. 2001).

New Mexico Workers’ Compensation Administration’s order that denied an injured employee his request for an independent medical examination pursuant to 52-1-51A NMSA 1978 was reversed; a bona fide dispute existed among his authorized health care providers as to whether the injured employee needed to see a neurologist, and this entitled him to an independent medical examination. Gutierrez v. J & B Mobile Homes, 1999-NMCA-007, 126 N.M. 494, 971 P.2d 1284, 1998 N.M. App. LEXIS 167 (N.M. Ct. App. 1998).

      Injurious practice.

      Judgment modification.

      Medical marijuana

Although the New Mexico Department of Health requires that a person obtain two written certifications in order to be enrolled in the program under the Lynn and Eric Compassionate Use Act and receive medical marijuana for severe chronic pain, the New Mexico Workers' Compensation Act has no such quantitative requirements for a workers' compensation judge (WCJ) to determine that medical care is reasonable and necessary. Therefore, the evidence was sufficient to support an award for reimbursement for medical marijuana where the evidence showed that the worker had severe chronic pain, and treatment with prescription narcotics was not working. Lewis v. Am. Gen. Media, 2015-NMCA-090, 355 P.3d 850, 2015 N.M. App. LEXIS 74 (N.M. Ct. App. 2015).

      Medical treatment.

Employer’s physician could not have been classified as a “treating” physician when he only met with the worker on one occasion for a total of 10 minutes, more than 16 months after the worker’s heart attack. The 10 minute consultation with the worker fell short of “treatment,” especially given the fact that the consultation occurred after the worker’s claim for benefits had been denied and after the worker filed a complaint with the WCJ. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190, 2006 N.M. LEXIS 334 (N.M. 2006).

In a workmen’s compensation case, whether a claimant’s failure or refusal to accept medical treatment is arbitrary and unreasonable is a question of fact. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393, 1974 N.M. App. LEXIS 680 (N.M. Ct. App. 1974).

      Opinions of examiner.

In workers’ compensation case, parties’ agreement to a recommended resolution requiring the worker to receive an independent medical examination did not prohibit independent medical examiner from performing a differential diagnosis to determine the cause of the worker’s back pain and he was permitted to testify before the workers’ compensation judge as to his medical opinions. Hall v. Carlsbad Supermarket/IGA, 2008-NMCA-026, 143 N.M. 479, 177 P.3d 530, 2007 N.M. App. LEXIS 164 (N.M. Ct. App. 2007).

      Reexmination.

In a workmen’s compensation case, reexaminations are authorized after reasonable cause is shown. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393, 1974 N.M. App. LEXIS 680 (N.M. Ct. App. 1974).

      Refusal of medical treatment.

In order to determine whether a worker has acted reasonably in refusing medical or surgical treatment, a trial court necessarily balances risks against benefits, which involves weighing the probability that the treatment will reduce the worker’s disability by a significant amount against the probable risks associated with the treatment. Brooks v. Hobbs Mun. Sch., 1984-NMCA-088, 101 N.M. 707, 688 P.2d 25, 1984 N.M. App. LEXIS 696 (N.M. Ct. App. 1984).

In a workmen’s compensation case, a claimant’s refusal of a surgical procedure is arbitrary and unreasonable and he will be denied compensation for an incapacity which may be removed or modified by an operation of a simple character, not involving serious suffering or danger, because a refusal to undergo an operation under such circumstances is deemed unreasonable; on the other hand, if the operation is of a major character and attended with serious risk to life or member, the rule is that an injured claimant’s refusal to submit to such operation is not unreasonable, and compensation should not be denied on that account. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393, 1974 N.M. App. LEXIS 680 (N.M. Ct. App. 1974).

Where an employee suffered a total temporary disability as a result of a compensable work injury, the employee’s refusal to submit to a myelogram was arbitrary and unreasonable because it posed minimal risk, was a standard evaluation procedure in the employee’s type of case, and would help in his disability evaluation. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393, 1974 N.M. App. LEXIS 680 (N.M. Ct. App. 1974).

      Requirements.

Party seeking an order that authorizes the conduct of an independent medical examination under 52-1-51A NMSA 1978 must present evidence to show that the request is reasonably necessary; a workers’ compensation judge is invested with the discretion to determine whether, based upon the evidence presented, good cause exists for conducting such examination. Gutierrez v. J & B Mobile Homes, 1999-NMCA-007, 126 N.M. 494, 971 P.2d 1284, 1998 N.M. App. LEXIS 167 (N.M. Ct. App. 1998).

      Sanctions.

Employer was entitled to a reduction in an employee’s workers’ compensation award under 52-1-51I NMSA 1978 because of the worker’s injurious practice of continuing to use his cane and back brace despite his treating physician’s repeated instructions to stop using such devices. Chavarria v. Basin Moving & Storage, 1999-NMCA-032, 127 N.M. 67, 976 P.2d 1019, 1999 N.M. App. LEXIS 3 (N.M. Ct. App. 1999).

      Treatment.

In a worker’s compensation procedure, a worker’s compensation judge erred in not admitting testimony of two physicians with respect to health care rendered before they became the worker’s authorized providers because the worker’s employer failed to object. DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, 146 N.M. 453, 212 P.3d 341, 2009 N.M. LEXIS 404 (N.M. 2009).

      Workers’ compensation.

Research References and Practice Aids

      Cross references.