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Edmiston v. City of Hobbs and Liberty Mutual Insurance Co.6/17/1997
d, at least in part, by the work-related accident, and compensation is appropriate. But in the second situation the condition has not been affected by the accident. There is no basis in our statute for awarding disability benefits arising from worsening of a preexisting condition when solely the causal relationship in the second situation is involved. The worker's compensable disability is only the disability caused by the combination of (1) the preexisting condition at the time of the work-related accident and (2) the work-related injury. No verbal gymnastics can make the progression of the condition the "natural and direct result" of the work-related accident.
{44} Also, the WCJ's finding that Worker's accident "aggravated the preexisting multiple myeloma" does not justify consideration of the progression of the myeloma in awarding permanent disability benefits. To begin with, the WCJ's finding apparently refers only to the fact that Worker's back injury increased her pain. There was no evidence that the accident changed the course or treatment of the myeloma. But even accepting the characterization of the increased pain as an aggravation, it was a temporary aggravation. Transient effects of a work-related accident on a preexisting condition during a worker's temporary disability cannot make the natural progression of the condition a "natural and direct result" of the work-related accident. If the progression of the condition from the time of the accident to the time of maximum medical improvement is the same as it would have been if there had been no work-related injury, then any disability arising from the progression is not compensable. To be sure, if a work-related accident continues to aggravate a worker's cancer, we do not apportion the cancer-caused disability between the disability that would have arisen in the absence of the work-related accident and the remaining aggravation of the cancer. But when the aggravation is only temporary and has no permanent effect on the course or treatment of the cancer, the requisite causal relationship disappears. See Arellano, 545 P.2d at 452; Hash, 846 P.2d at 983-84.
{45} Because Worker failed in her burden to establish the extent of her disability caused by the accident, the decision of the WCJ could be affirmed. But given the uncertain state of the law at the time of the hearing, the fairer way of proceeding is to remand. I therefore join in remand to the WCJ. I disagree with the instructions for remand, however, to the extent that they suggest that Worker is necessarily entitled to all benefits arising from disability caused by her myeloma. Only the state of her myeloma at the time of her accident (combined with her back injury ) should be considered; any disability resulting from post-accident worsening of the disease is not compensable. The WCJ may find it advisable to permit further proceedings concerning the opinions of the physicians who previously provided reports and depositions--the questions that were asked in prior proceedings did not focus on distinctions that may be critical in determining the benefits due Worker. Because of the uncertainties in the applicable law, I do not fault the attorneys in this regard. Nevertheless, the following passage from Gay v. Workers' Compensation Appeals Board, 96 Cal. App. 3d 555, 158 Cal. Rptr. 137, 141 (Ct. App. 1979), bears repeating:
We do not comprehend how the parties can expect any physician to properly report in workers' compensation matters unless he is advised of the controlling legal principles. Physicians are trained to discover the etiology of an illness. Finding the causes is important in preventive medicine and curing illness once developed. Legal apportionment is not identical t
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