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Edmiston v. City of Hobbs and Liberty Mutual Insurance Co.6/17/1997
ker produced uncontroverted medical evidence as to the combined effect of the compression fractures and the multiple myeloma. Employer presented no independent medical evidence. The WCJ made no finding regarding any reason to discard Worker's medical evidence on independent grounds such as for reasons of impeachment, and the WCJ was asked to do so by Employer. Faced with evidence of combination, the burden of production should be upon an employer to show that the effects of the preexisting condition are identifiably separate and unrelated so that they fit within the narrow exception to the Reynolds rule articulated in Clavery and Holliday, and limited further by Leo. ("In both cases, this Court held that the Workers' Compensation Act does not allow an award of compensation benefits based on later injuries or illnesses that are wholly unrelated to either the employment or the original compensable injury.").
Aggravation of Preexisting Condition
{18} Given the presence of a preexisting condition, the second principle of Reynolds and Leo is that the WCJ must consider the combined effects of the two when the job injury has either "'aggravated, accelerated, or combined with the disease or infirmity to produce the . . . disability.'" (quoting 1 Larson, (supra) , ยง 12.21). The WCJ found that the compression fractures "to a medical probability . . . aggravated the preexisting multiple myeloma," and granted temporary total disability; yet the WCJ concluded that Worker's post-MMI inability to work was due to the cancer alone and not to any combination of the two. How did this change come about?
{19} The WCJ appears to have relied on two factual observations: (1) the compression fractures did not affect or aggravate the natural course of the cancer, and therefore post-MMI, the cancer itself might have been just as disabling with or without the bone fractures; and (2) without the cancer, the compression fractures would have been expected to heal in 8 to 12 weeks. Therefore, the WCJ seems to have inferred that after MMI any remaining disability must have been due to the cancer (except for the 10% residual impairment).
{20} Employer argues in support that, post-MMI, the pain from the compression fractures was not a disabling factor, especially when compared with the cancer, and that there was no treatment or therapy prescribed for the back injury . Employer also notes the absence in the work restrictions of any one element due solely to the back fractures as compared with the cancer. Finally, in its brief on appeal, Employer argues to this Court the following telling point: "The WCJ did not make any findings that the Worker's cancer was worse, because of the compression fracture, than it would have been without the compression fracture. That is the finding that would have been necessary for the Judge to find a permanent aggravation of an underlying condition."
{21} We again look to Reynolds and Leo for the appropriate legal standard. Our law does not require a "permanent aggravation" of the preexisting condition, nor does it limit compensation benefits exclusively to the extent of the aggravation, as Employer insists. An employer is responsible for the full extent of the impairment "'if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.'"
{22} Combination of the workplace injury and the preexisting condition allows the flow of influence to go in either, or both, directions. That is, the workplace injury may make the preexisting condition worse or, as in Reynolds, the debilitating effects of the workplace injury may be made worse by reason of increased susce
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