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Edmiston v. City of Hobbs and Liberty Mutual Insurance Co.6/17/1997
ptibility to harm as a result of the preexisting condition. As the Reynolds opinion noted, "aggravation" or "acceleration" of the underlying condition are not requirements for recovery nor should these terms be used to limit recovery.
{23} We will assume, as the medical evidence suggests, that the multiple myeloma itself cannot be described as being worse because of the workplace injury . It is, after all, an incurable disease. However, if that were the standard for compensation benefits, as Employer argues, then the worker's osteoporosis in Reynolds, as well as the worker's heart and lung condition in Leo, would have been excluded in determining total benefits in those cases. The appropriate standard in those two cases, as in this one, is whether the preexisting condition and the workplace injury combined to produce an overall condition of disability.
{24} In this case, the record is uncontradicted, and the WCJ so found, that the cancer and the back injury did in fact combine to incapacitate Worker until the date of MMI. If there had been evidence that, post-MMI, the Worker had fully recovered from the effects of her compression fracture, then it might follow that any permanent disability would be due to the cancer alone. But the WCJ did not so find, which is not surprising because the medical evidence would not have supported such a finding. Dr. Dicke spoke of the continuing incapacity due, in part, to excruciating pain in the same lumbar area as the compression fracture, and the limitations imposed by the cancer on treating the back injury directly. In addition, Worker's fracture was more severe and more painful because of the effect of the cancer on the structural integrity of the bone. Thus, the cancer made the injury worse, increased symptomatology, and made the fracture more difficult to treat. Indeed, even the WCJ found a permanent impairment of 10% from the compression fracture. Therefore, as in Reynolds, where "the injury is to a bone, and the disease being suffered is to the bones, and the total disability results from the concurrence of the two factors, the right to compensation for the resultant condition cannot be successfully questioned."
{25} The WCJ determined that the compression fractures alone would have been expected to heal in 8 to 12 weeks in a healthy worker, unburdened by the preexisting cancer. But the test is not what would have happened to someone else. As the court noted in Reynolds "'the question is not what the accident would have done to a different man but what it actually did to its victim.'" (quoting National Homeopathic Hospital Ass'n v. Britton, 79 U.S. App. D.C. 309, 147 F.2d 561, 564 (D.C. Cir. 1945). As Professor Larson has noted, "the employer takes the employee as it finds that employee." 1 Larson, (supra) , ยง 12.21; see ), cert. denied, 120 N.M. 715, 905 P.2d 1119 (1995).
Conclusion
{26} In the final analysis, Employer has misconstrued the full import of our decisions in Reynolds and Leo. In effect, Employer makes a plea for proportional allocation, because it would be unfair for Employer to have to pay for any more of Worker's present condition than can be allocated precisely to the worksite fall. But that is not the law in New Mexico. The WCJ appears to have relied incorrectly on such argument and the compensation order was erroneously based on that misperception of the appropriate legal standard.
{27} Accordingly, we reverse and remand with instructions for the WCJ to apply the standard outlined herein to the facts of record and recalculate Worker's permanent partial disability in conformity therewith.
{28} IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
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