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Sanchez v. Zanio's Foods10/20/2005
tash Co., 2003-NMSC-026, 35, N.M. , 77 P.3d 1014 (" f the expert who testifies lacks pertinent information, his or her opinion cannot satisfy the burden imposed by Section 52-1-28[.]"); Grudzina v. New Mexico Youth Diagnostic & Dev. Ctr., 104 N.M. 576, 582, 725 P.2d 255, 261 (Ct. App. 1986) (" n expert's opinion is only as good as the factual basis for it[.]").
Further, citing Niederstadt, Employer argues that the record shows that only one doctor, Dr. Castillo, compared the 1989 MRI to Worker 's post-2001 injury condition; Dr. Castillo determined that Worker did not suffer any significant change to his back condition as a result of the 2001 injury. Based on the lack of medically reliable evidence in the record that the 2001 incident caused Worker's degenerative disk condition, Employer argues that the WCJ's finding was erroneous and should be reversed. Further, Employer argues that the WCJ abused his discretion in failing to grant its motion in limine.
In his answer brief on appeal, Worker does not mention Niederstadt. Worker nowhere argues that Employer did not preserve a Niederstadt argument. As indicated later in this opinion, Worker argues that there was substantial evidence of causation based on the testimony of the doctors.
B. THE APPROACH OF THIS COURT BASED ON THE BRIEFS ON APPEAL AND WORKER 'S APPROACH ON REHEARING
In studying the causation issue and Niederstadt based on the state of the appellate briefs, we determined that Niederstadt applied because Drs. Reeve and Burg did not have pertinent information in regard to Worker 's medical condition, in that they were not aware of and did not consider the 1989 MRI and Dr. Castillo's testimony that Worker's degenerative disk condition remained unchanged from 1989 through the 2001 injury. It was only after our first opinion in this case that Worker appears to have awakened to the fact that Employer had been arguing the Niederstadt principle below, had actually cited and argued Niederstadt in its brief in chief, and that the Niederstadt principle was at issue on appeal. We will discuss this more.
The history of our opinions in this case is that we filed an opinion on April 1, 2005, withdrew it and filed a revised opinion on May 12, 2005, and then withdrew the revised opinion in order to further consider Worker 's two motions for rehearing. We asked the parties to file supplemental briefs because of case law raised for the first time as well as clearer arguments made in Worker's motions for rehearing, and out of concern that perhaps existing case law relating to pre-existing injuries and conditions rendered Niederstadt inapplicable.
In his rehearing motions, Worker argues that his pre-existing degenerative disk condition was essentially insignificant with respect to the disability determination relating to the 2001 injury, in that his current disability was predominantly based on L4 radiculopathy and there was no medical evidence that the pre-existing degenerative disk condition was pertinent to the L4 radiculopathy. He points to evidence indicating that surgical repair of the pre-existing degenerative disk condition would be ineffective to treat the L4 radiculopathy. He emphasizes that, while Drs. Reeve and Burg recognized the existence of degenerative disk disease and that the condition may have contributed to Worker's disability, the doctors' impairment ratings on which the WCJ based a disability conclusion were grounded predominantly on their diagnoses of L4 radiculopathy. Further, Worker argues on rehearing that in applying Niederstadt we ignored established case law in this jurisdiction holding that compensation is to be paid for the full resultant disability when a pre-e
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