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Edmiston v. City of Hobbs and Liberty Mutual Insurance Co.6/17/1997
I CONCUR:
MICHAEL D. BUSTAMANTE, Judge
HARRIS L HARTZ, Chief Judge (concurring in part, Dissenting in part)
HARRIS L HARTZ (In Part)
HARTZ, Chief Judge (concurring in part, Dissenting in part).
{29} I concur in the remand to the Workers' Compensation Judge (WCJ) for further proceedings. Additional findings are necessary to determine the benefits to which Worker is entitled. I Dissent from the majority opinion, however, to the extent that it appears to expand improperly our decision in .
{30} Although I agree with much of the majority opinion, I cannot agree that Worker is necessarily entitled to benefits for all disability caused by her work-related accident and her myeloma. According to the WCJ's findings, the progression of her myeloma and the treatment of the disease were not affected by the work-related injury . As I understand the principles of New Mexico workers' compensation law, Worker is therefore not entitled to disability benefits for those disabling effects of Worker's myeloma that arose after Worker's accident.
{31} The majority opinion states the general rule in New Mexico that the employer takes the worker as it finds the worker. For example, if the worker has only one eye and loses that eye as the result of a work-related accident, the employer is responsible for the disability resulting from worker's total blindness. New Mexico has not joined those states that apportion disability so that the employer is not responsible for the post-accident disability to the extent that the disability can be attributed to a pre-accident disabling condition. See 2 Arthur Larson, The Law of Workmen's Compensation § 59.21 (1994) (New Mexico has, however, permitted employers to obtain some relief through a subsequent injury fund, see NMSA 1978, § 52-2-1, -4-9, -11, -12, -14 (Repl. Pamp. 1991), although the statutory authorization for that fund expires in 1999, see 1996 N.M. Laws (1st S.S.) ch. 10.) Thus, in , the worker was entitled to benefits for total disability resulting from the combination of a work-related back injury and preexisting, asymptomatic osteoporosis. In Leo we held that the worker was entitled to disability benefits based on consideration of not only the worker's work-related back injury but also the worker's heart and lung conditions existing at the time of the injury.
{32} Nonetheless, to say that the employer takes the worker as it finds the worker, is not to say that the employer takes the worker as the worker later becomes, at least insofar as the work-related accident bears no responsibility for the post-accident change in the worker's condition. In ), the worker suffered a work-related back injury and then aggravated the injury while attempting to repair his personal truck at home. . We held that the worker could recover benefits for his disability after the second injury only if the disability "was a direct and natural result of the [earlier] injury--that is, a disability that arose from a combination of his [earlier] injury and the normal physical strains of daily life." (Repl. Pamp. 1991) (disability is compensable only if "a natural and direct result of the accident"). We pointed out that, "the worker is not . . . provided an insurance policy of indefinite duration to cover every non-work-related accident that magnifies the original injury."
{33} Similarly, in ), the worker was diagnosed with breast cancer a year after suffering a compensable back injury. Noting that Section 52-1-28 requires that the disability be "a natural and direct result of the accident," the Court reversed an award that considered the breast cancer in determining the extent of worker's disability. .
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