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Edmiston v. City of Hobbs and Liberty Mutual Insurance Co.6/17/1997
BOSSON, Judge.
{1} Worker Joyce Edmiston appeals a decision of the Workers' Compensation Judge (WCJ). She argues that the WCJ misapprehended New Mexico law on preexisting conditions and workplace injuries which led to an incorrect determination of Worker's benefits. We determine that the WCJ incorrectly applied the law to the facts of this case, and therefore reverse and remand.
BACKGROUND
{2} On September 28, 1994, Worker was a clerk for the City of Hobbs when she tripped and fell into a counter at work, twisting her back. Worker testified that she felt severe pain in her back after she tripped, but was determined to remain at work, although she did restrict her activities. The following day she kept a previously scheduled appointment with Dr. Ward, an oncologist, and told him about the back pain. Dr. Ward arranged for x-rays of the affected area which revealed compression fractures of several vertebrae in her spine. Worker then saw Dr. DuBose whose evaluation of the x-rays led him to suspect multiple myeloma, an incurable form of cancer marked by a thinning of the bones as well as painful lytic lesions on the bones. On October 7, 1994, Worker went to the Arlington Cancer Center in Texas for an examination by Dr. Dicke, a specialist in oncology and hematology, who confirmed the diagnosis of multiple myeloma and arranged for treatment. Worker never returned to her job with the City.
{3} Three months later, in January 1995, Worker filed for compensation benefits with the Workers' Compensation Administration. A WCJ conducted a formal hearing in November 1995. The principal source of medical evidence at the hearing was the deposition of Dr. Dicke. Because of Worker's condition, Dr. Dicke opted to treat the cancer systemically through chemotherapy before treating the compression fractures conventionally or the bone lesions with radiation because radiation would have interfered with the chemotherapy. Dr. Dicke testified that, although the compression fractures would likely not have affected the natural course of the multiple myeloma, the back injury did cause Worker to be physically more incapacitated because of the increased amount of pain. Dr. Dicke also testified that, based on the bone scan, the multiple myeloma existed at the time of the work injury. Dr. Dicke estimated Worker's disability at approximately 80% due to the combined effects of the cancer and the compression fractures. At the time of the hearing, Worker was being given dilaudid and morphine to control the back pain.
{4} Based on this testimony, the WCJ found that Worker suffered a compression fracture in the spine as a result of the work accident which aggravated the preexisting multiple myeloma; that the accident caused Worker to be more incapacitated than multiple myeloma without a fracture; that the cancer rendered Worker more susceptible to fractures of the spine; and the fracture affected the treatment of the disease due to the amount of pain involved. The WCJ agreed with Dr. Dicke that the cancer was concentrated in the lumbar area, including the area of the fractured vertebrae, and the WCJ observed that Worker was experiencing "a lot of pain in that area" at least at the time that she was first treated at the cancer center. The WCJ awarded temporary total disability from October 7, 1994 until February 9, 1995, concluding that Worker had been totally incapacitated from working during that period due to the combination of the fractured vertebrae and the multiple myeloma.
{5} The WCJ then determined that the compression fracture had reached maximum medical improvement (MMI) on February 9, 1995, based on Dr. Dicke's assessment that, after a second round of chemotherapy, t
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