 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:
 3
 4 Filing Date: April 30, 2018

 5 No. A-1-CA-35584

 6 MICHAEL D. LEWIS, as surviving spouse of
 7 PATRICIA A. LEWIS, deceased,

 8        Claimant-Appellee/Cross-Appellant,

 9 v.

10 ALBUQUERQUE PUBLIC SCHOOLS,

11        Employer-Appellant/Cross-Appellee.

12 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
13 Leonard J. Padilla, Workers’ Compensation Judge

14 Gerald A. Hanrahan
15 Albuquerque, NM

16 for Claimant-Appellee

17   Yenson, Allen & Wosick, P.C.
18   Matthew L. Connelly
19   Michael D. Russell
20   Albuquerque, NM

21 for Employer-Appellant
 1                                       OPINION

 2 BOHNHOFF, Judge.

 3   {1}   Patricia Lewis (Worker) sought and obtained an award of workers’

 4 compensation disability benefits after she contracted Allergic Bronchopulmonary

 5 Aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed

 6 with Albuquerque Public Schools (Employer). Following Worker’s death, her

 7 widower, Michael Lewis (Claimant), sought and the Workers’ Compensation Judge

 8 (WCJ) awarded workers’ compensation death benefits under the Workers’

 9 Compensation Act (the Act), NMSA 1978, 52-1-1 to 52-1-70 (1929, as amended

10 through 2017). On appeal, Employer makes four arguments: (1) the WCJ erred in

11 concluding that Worker’s death occurred within two years of her compensable work

12 injury, and thus that the death benefits claim was not barred by the applicable statute

13 of limitations; (2) the WCJ erred in excluding medical records and testimony that

14 supported Employer’s position that Worker died as a result of cancer unrelated to the

15 ABPA; (3) related to the second issue, the WCJ erred in finding that Claimant’s

16 medical evidence regarding the cause of Worker’s death was uncontradicted; and (4)

17 even if Claimant was entitled to death benefits, the amount of benefits that the WCJ

18 awarded was erroneous. Claimant cross appeals, arguing that the WCJ erred by not

19 awarding death benefits at 100% of Worker’s compensation rate. We affirm on
 1 Employer’s first argument, reverse on the second and third arguments, and affirm on

 2 the fourth argument. We reverse on Claimant’s cross-appeal argument. We remand

 3 for a new trial on whether Worker’s ABPA caused Worker’s death.

 4 BACKGROUND

 5   {2}   Worker was employed by Employer from 1999 until 2013 and taught at

 6 Manzano High School in Albuquerque, New Mexico for a number of years. At the

 7 beginning of the 2011-2012 school year, she was assigned to teach classes in a new

 8 classroom, Room J-13. Worker complained to Employer about the presence of mold

 9 in Room J-13. Her primary care physician, Dr. John Liljestrand, began treating her

10 for difficulty breathing on October 3, 2011. Dr. Liljestrand wrote to Employer in

11 December 2011 advising that Worker’s respiratory problems were attributable to her

12 classroom. Thereafter, Dr. Liljestrand referred Worker to Dr. Steven Tolber, an

13 allergist and immunologist who was already treating Worker, to be treated for her

14 respiratory issues. Dr. Tolber began treating her for respiratory issues related to

15 exposure to mold in Room J-13 on April 18, 2012.

16   {3}   Dr. Tolber wrote a letter to Employer at the end of the 2011-2012 school year

17 that stated Worker could not return to Room J-13. On October 22, 2012, Dr. Tolber

18 diagnosed Worker with ABPA and stated that the ABPA was caused by Worker’s

19 exposure to aspergillus mold in her classroom. Worker regularly continued to work



                                             2
 1 and earn her regular salary until December 21, 2012. From December 22, 2012 to

 2 March 31, 2013, Worker drew upon available sick leave time and thus did not lose

 3 any pay. Worker terminated her employment with Employer by retiring effective

 4 March 31, 2013.

 5   {4}   During this same general time period, Worker faced another medical condition.

 6 She had been treated for breast cancer in 1997, but the disease had been in remission

 7 until late 2012 when it was discovered to be metastatic. Worker began chemotherapy

 8 in 2013 that continued into 2014. Worker’s oncologist was Dr. Richard Giudice of

 9 the New Mexico Cancer Center.

10   {5}   Worker filed a claim for workers’ compensation disability benefits on March

11 6, 2013. She alleged that her continued exposure to aspergillus mold after she started

12 working in Room J-13 caused her disability.

13   {6}   Worker’s claim for disability benefits was tried over the course of two days in

14 June 2014. The parties stipulated that Worker’s employment with Employer ended

15 on March 31, 2013, and that she had not earned her weekly wage since then. During

16 the trial, the WCJ admitted into evidence the depositions and medical records of Dr.

17 Liljestrand and Dr. Tolber. The WCJ also admitted Dr. Giudice’s February 21, 2014

18 deposition.




                                              3
 1   {7}   The WCJ issued his compensation order on December 16, 2014. He made the

 2 following findings, among others: (1) Worker was exposed to aspergillus spores

 3 while teaching in her classroom at Manzano High School; (2) On October 22, 2012,

 4 Dr. Tolber diagnosed Worker with ABPA; and (3) Worker’s ABPA was caused by

 5 her exposure to aspergillus in Room J-13. The WCJ specifically found that

 6         [t]here is a causal connection between Worker’s accidental injury
 7         (ABPA) and her resulting disability and the injury is reasonably incident
 8         to Worker’s exposure to aspergillus in [Room] J-13 . . . Worker’s
 9         accidental exposure to aspergillus arose out of, and occurred within the
10         course and scope of, Worker’s employment with Employer . . . Worker’s
11         ABPA and resulting disability [were] a natural and direct result of her
12         exposure to aspergillus while working for Employer.

13   {8}   Additionally, the WCJ found that “[d]ue to ABPA, Worker [was] unable to

14 perform the duties of high school teacher since April 1, 2013.”The WCJ awarded

15 Worker Temporary Total Disability (TTD) benefits from April 1, 2013 to January 15,

16 2014.The WCJ also found that Worker suffered a compensable injury with permanent

17 impairment and that Worker was entitled to Permanent Partial Disability (PPD)

18 benefits of 99% from January 16, 2014 and continuing for 700 weeks. Employer did

19 not appeal the December 16, 2014 compensation order.

20   {9}   Dr. Liljestrand last saw Worker in March 2014. Dr. Tolber last saw Worker in

21 September 2014. Worker continued, however, to be seen by Dr. Giudice and receive

22 treatment for her cancer.



                                              4
 1   {10}   Dr. Tolber’s notes of Worker’s appointments with him on May 14, 2014 and

 2 May 29, 2014 reflect concern about “fluid overload” and shortness of breath, and

 3 whether those issues were attributable to the chemotherapy. On September 23, 2014,

 4 Worker was advised by the New Mexico Cancer Center that her white blood cell

 5 count was low due to the chemotherapy. Worker had additional appointments at the

 6 New Mexico Cancer Center on October on the 4, 7, and 21, 2014 and November 11,

 7 2014. Worker was seen by Dr. Giudice on October 21 and November 11, 2014. On

 8 November 11, 2014, Worker complained of shortness of breath, but a chest x-ray

 9 taken that day did not reveal pneumonia. Worker was to return to Dr. Giudice the next

10 day for further examination and treatment. While leaving her home to go to the

11 hospital the morning of November 12, 2014, Worker collapsed and died. No autopsy

12 was performed.

13   {11}   Worker’s disability benefits terminated upon her death. Section 52-1-47(C).1

14 Claimant filed a claim for workers’ compensation death benefits on January 22, 2015

15 alleging that Worker’s ABPA was the cause of her death. In its answer to the death

16 benefits complaint, Employer admitted all of the findings of fact and conclusions of

17 law contained in the first compensation order. Employer further admitted that the

18 findings and conclusions in the first compensation order were binding on the death

          1
19          Section 52-1-47 was amended in 2015, but subsection (C) remains the same
20 as it was in the 1990 version.

                                              5
 1 benefits proceeding. However, Employer disputed the timeliness of the death benefits

 2 claim and the cause of death. The WCJ issued a pre-trial order on October 30, 2015

 3 indicating that prior WCA orders entered during the disability benefits proceeding on

 4 May 18, 2014 and December 16, 2014 established the law of the case as to the death

 5 benefits trial.

 6   {12}   The death benefits claim was tried on November 12, 2015. Claimant testified.

 7 In addition, the WCJ admitted Claimant’s exhibits, which included the additional

 8 depositions of Dr. Tolber and Dr. Liljestrand that were taken on October 14 and

 9 August 20, 2015, respectively, and Worker’s certificate of death, which was prepared

10 by Dr. Liljestrand. The death certificate listed “pneumonia” and “chronic

11 pneumonitis” as the causes of death. Dr. Liljestrand testified that Worker’s ABPA

12 was either a direct or a contributing cause of these conditions. Dr. Tolber testified that

13 Worker “most likely died of ABPA.”

14   {13}   At the death benefits trial, Employer offered into evidence, among other

15 exhibits, the February 21, 2014 deposition of Dr. Giudice—which had been admitted

16 without objection during the first disability benefits trial. Employer also offered into

17 evidence a second deposition of Dr. Giudice taken after Worker had passed away

18 dated September 14, 2015. Claimant, however, objected to admission of the Giudice

19 depositions and records, arguing that, under Section 52-1-51(C), only a health care



                                               6
 1 provider (HCP) who has provided care for a worker’s work-related injury pursuant

 2 to Section 52-1-49, or an independent medical examiner identified pursuant to

 3 Section 52-1-51(A), could testify as to the cause of death in connection with a claim

 4 for death benefits under Section 52-1-46. Because Dr. Giudice was neither an

 5 authorized HCP under Section 52-1-49 nor an independent medical examiner under

 6 52-1-51(A), Claimant urged, he could not testify about Worker’s cause of death. The

 7 WCJ agreed with Claimant and denied admission of the Giudice depositions and the

 8 New Mexico Cancer Center records.

 9   {14}   In his 2015 deposition, when asked to identify the documentation that he

10 reviewed to determine Worker’s cause of death, Dr. Liljestrand could not verify that

11 he reviewed any documentation. Instead, his cause of death determination was based

12 on a discussion with Claimant. Dr. Liljestrand had not reviewed any information from

13 the New Mexico Cancer Center regarding the treatment Worker had received in the

14 fall of 2014, including on November 11. Similarly, in his 2015 deposition, Dr. Tolber

15 acknowledged that he had not reviewed any of the records of Worker’s care and

16 treatment at the New Mexico Cancer Center from March 2014 to November 2014. All

17 of the information that Dr. Tolber had concerning how Worker died was provided by

18 Claimant. When asked what he knew about the circumstances of her death, Dr. Tolber




                                             7
 1 testified only to what he had been told about Worker’s shortness of breath and that

 2 he had “not seen the [results] on the autopsy, so I don’t know.”

 3   {15}   On April 21, 2016, the WCJ issued his compensation order concerning the

 4 death benefits claim. The order makes the following findings: (1) “Worker

 5 established a causal connection between the ABPA and her place of employment”;

 6 (2) “As a result of a compensable injury, Worker was awarded compensation

 7 benefits”; (3) Dr. Liljestrand found that Worker’s ABPA was either a direct cause or

 8 a contributing cause of what he listed on Worker’s death certificate for causes of

 9 death; (4) Dr. Tolber testified that Worker “most likely died of ABPA”; (5) “There

10 is a causal connection between Worker’s ABPA and her resulting death”; (6) “The

11 medical evidence and testimony establishing causation is uncontradicted”;

12 (7) “Compensation benefits for death are payable to eligible dependents if an

13 accidental injury sustained by a worker proximately results in the worker’s death

14 within the period of two years following the worker’s accidental injury”; (8) “The two

15 year time limit for bringing a claim for death benefits begins to accrue from the date

16 the compensable injury manifests itself or from when the worker knows or should

17 know [s]he has suffered a compensable injury”; (9) “Due to ABPA, Worker was

18 unable to perform the duties of high school teacher beginning on April 1, 2013”; (10)




                                             8
 1 “Worker’s injury manifested itself on April 1, 2013”; and (11) “Worker’s death on

 2 November 12, 2014, occurred within two years of April 1, 2014.”2

 3 ANALYSIS

 4 I.       Worker’s Death Occurred Within Two Years of Her Compensable Injury;
 5          Claimant’s Claims Therefore Are Not Time-Barred

 6 A.       Standard of Review

 7   {16}   “All workers’ compensation cases are reviewed under a whole record standard

 8 of review.” Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175

 9 P.3d 926. “On appeal, to determine whether a challenged finding is supported by

10 substantial evidence, we have always given deference to the fact[-]finder, even when

11 we apply . . . whole record review.” DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032,

12 ¶ 12, 146 N.M. 453, 212 P.3d 341 (internal quotation marks and citation omitted).

13 “The reviewing court starts out with the perception that all evidence, favorable and

14 unfavorable, will be viewed in the light most favorable to the agency’s decision.”

15 Tallman v. ABF (Arkansas Best Freight), 1988-NMCA-091, ¶ 18, 108 N.M. 124, 767

16 P.2d 363. However, we “may not view favorable evidence with total disregard to

17 contravening evidence.” Id. ¶ 13 (internal quotation marks and citation omitted). “The

18 possibility of drawing two inconsistent conclusions from the evidence does not mean

          2
19          We assume the WCJ meant April 1, 2013, in part because in the conclusions
20 of law section the judge writes that Worker’s death occurred within two years of April
21 1, 2013.

                                             9
 1 the agency’s findings are unsupported by substantial evidence.” Id. ¶ 15. “Substantial

 2 evidence on the record as a whole is evidence demonstrating the reasonableness of

 3 an agency’s decision . . . and we neither reweigh the evidence nor replace the fact

 4 finder’s conclusions with our own.” DeWitt, 2009-NMSC-032, ¶ 12 (citation

 5 omitted).

 6   {17}   “When our review consists of reviewing a WCJ’s interpretation of statutory

 7 requirements, we apply a de novo standard of review.” Laughlin v. Convenient Mgmt.

 8 Servs., Inc., 2013-NMCA-088, ¶ 9, 308 P.3d 992 (internal quotation marks and

 9 citation omitted). “We review the WCJ’s application of the law to the facts de novo.”

10 Id.

11   {18}   Section 52-1-46 states in part that, subject to certain limitations enumerated

12 within the statute, death benefits shall be paid “if an accidental injury sustained by a

13 worker proximately results in the worker’s death within the period of two years

14 following the worker’s accidental injury[.]” For purposes of this case, the key

15 language is the phrase “accidental injury[,]” which is the triggering event for the

16 limitations period. We review de novo the WCJ’s interpretation of this phrase as well

17 as the application of the law to the facts to determine when Worker’s accidental injury

18 occurred. Laughlin, 2013-NMCA-088, ¶ 9.




                                              10
 1 B.       Worker’s Death Occurred Within Two Years of Her Compensable Injury

 2   {19}   Employer argues that Worker’s death occurred more than two years after her

 3 compensable injury because she either knew or should have known she had a

 4 compensable injury on or between August 7, 2011 and October 22, 2012, and thus her

 5 compensable injury manifested itself sometime between those two dates. Claimant

 6 argues that the WCJ’s finding that Worker’s death was within two years of her

 7 compensable injury is supported by the evidence presented during the death benefits

 8 trial. Claimant also argues that the date Worker’s compensable injury manifested

 9 itself is the same date that the injury became compensable.

10   {20}   Employer’s position is not consistent with New Mexico precedent. In Gambrel

11 v. Marriott Hotel, 1991-NMCA-100, ¶¶ 12-13, 112 N.M. 668, 818 P.2d 869, this

12 Court addressed when an accidental injury occurs for purposes of applying Section

13 52-1-46’s limitations period for death benefits. We noted that the legislative purpose

14 underlying the provision of disability and death benefits—providing for the financial

15 security of a worker and his family—was the same for both types of benefits. See

16 Gambrel, 1991-NMCA-100, ¶ 6 (“[W]e believe the broad policy contours underlying

17 the Act are identical whether worker is disabled or dies as a result of the accidental

18 injury.”). Given that common purpose, we determined that the trigger event for the




                                             11
 1 limitation period for death benefits would be given the same construction as the

 2 trigger event for disability benefits:

 3          We, therefore, apply the meaning “date when the compensable injury
 4          manifests itself” or “date when the work[er] knows or should know he
 5          has suffered a compensable injury” to all of the portions of [the Act]
 6          where the terms “time of accident,” “time of injury,” “date of disability,”
 7          “date of accidental injury,” or words of similar import, are used[.]

 8 Id. ¶ 12 (citation omitted). We ultimately applied the second definition, the date when

 9 the worker knows or should know he or she has suffered a compensable injury, in

10 concluding that the death benefits claim in question was not barred by the two-year

11 limitations period. Id. ¶ 15. We follow Gambrel here and define the date of Worker’s

12 accidental injury as the date that she knew or should have known of her compensable

13 injury.

14   {21}   In this case, Claimant has a death benefits claim only if Worker died within two

15 years of the date that she knew or should have known that she had suffered a

16 compensable injury due to her exposure to aspergillus mold. Worker died on

17 November 12, 2014. Thus, if Worker knew or should have known that she had a

18 compensable injury before November 12, 2012, Section 52-1-46 bars Claimant’s

19 claim for death benefits. On the basis of the WCJ’s findings of fact regarding the

20 statute of limitations issue, which Employer does not challenge on appeal, we

21 determine that Worker knew or should have known she had a compensable injury on



                                                12
 1 April 1, 2013, which is within two years of Worker’s death on November 12, 2014.

 2 Based on the analysis that follows, we affirm the WCJ with respect to the statute of

 3 limitations issue raised by Employer.

 4   {22}   When Worker’s injury became compensable is crucial to the determination of

 5 when she knew or should have known she had a compensable injury. Within the Act,

 6 there are benefits for TTD (Section 52-1-25.1), PPD (Section 52-1-26), Permanent

 7 Total Disability (PTD) (Section 52-1-25), and scheduled injuries (Section 52-1-43).

 8 See Torres v. Plastech Corp., 1997-NMSC-053, ¶ 14, 124 N.M. 197, 947 P.2d 154

 9 (describing the four different forms of disability under the Act). Therefore, for an

10 injury to be compensable, which is part of the triggering event for Section 52-1-46’s

11 limitations period according to Gambrel, the worker must know or have reason to

12 know that he or she is entitled to TTD, PPD, PTD, or scheduled benefits. 1991-

13 NMCA-100, ¶¶12-13.

14   {23}   Torres discusses the limitations period of Section 52-1-31(A), which provides

15 that if an employer fails to pay or refuses to pay a worker compensation to which he

16 or she is entitled under the Act, after the worker has given the employer notice of the

17 accident in a timely fashion, the worker must file a claim for compensation within one

18 year of when the employer failed to pay or refused to pay compensation. Torres,

19 1997-NMSC-053, ¶ 10. The statute further provides that the limitations period will



                                              13
 1 be tolled for up to one year if the worker is still employed by the employer. Thus, an

 2 employer “shall begin to pay compensation not later than thirty-one days after the

 3 date of the occurrence of the disability and is not deemed to have failed or refused to

 4 pay compensation until the expiration of this time period.” Id. ¶ 7 (internal quotation

 5 marks and citation omitted). It is therefore necessary to determine the “date of the

 6 occurrence of the disability” to determine when an employer fails or refuses to pay

 7 compensation, which failure or refusal then triggers—subject to the possible one-year

 8 tolling period—Section 52-1-31(A)’s one-year limitations period for the worker to

 9 file a claim for benefits. See Torres, 1997-NMSC-053, ¶¶ 7-8.

10   {24}   Torres concluded “that the status of disability [either TTD, PPD, or PTD] or

11 the existence of a scheduled injury is a necessary element required to trigger the

12 statute of limitations[.]” Id. ¶ 6. Torres identified the triggering event for the statutory

13 limitations period to be when it is reasonably apparent, or should be reasonably

14 apparent, that the worker has “an injury on account of which he is entitled to

15 compensation[.]” Id. ¶ 11 (internal quotation marks and citation omitted). According

16 to Torres, this triggering event has two elements: “(1) an injury entitling the worker

17 to compensation under the Act; and (2) knowledge, or imputed knowledge, by the

18 worker of this injury.” Id. (emphasis added).




                                                14
 1   {25}   While Torres was applying a different limitations period than the one

 2 established by Section 52-1-46 for death benefits, Torres informs our analysis here

 3 given the holding in Gambrel, which equates the limitations period of Section 52-1-

 4 46 (triggered by the date of accidental injury) with “the terms ‘time of accident,’ ‘time

 5 of injury,’ ‘date of disability,’ ‘date of accidental injury,’ or words of similar import”

 6 as used elsewhere in the Act. Gambrel, 1991-NMCA-100, ¶ 12. Based on Torres, we

 7 determine that the limitations period of Section 52-1-46 was not triggered until

 8 Worker knew or should have known she had an injury entitling her to TTD, PPD or

 9 PTD disability benefits. See Torres, 1997-NMSC-053, ¶ 12 (“Therefore, subtracting

10 two years and thirty-one days from the date of filing, we must determine whether

11 there is substantial evidence that [the worker] knew, or should have known, of her

12 injury and that [she] was entitled to compensation before February 26, 1993.”

13 (emphasis added)). Because Worker did not have a scheduled injury, that potential

14 trigger for the running of the death benefits statute of limitations need not be

15 addressed.

16   {26}   Other cases, although decided before 1990 when the Act articulated the

17 different types of disability that exist today, are consistent with Torres’ holding that

18 the date of the occurrence of the disability is when the worker knows or should know

19 that he or she has an injury and is entitled to compensation for that injury. In Lovato



                                               15
 1 v. Duke City Lumber Co., 1982-NMCA-021, ¶ 3, 97 N.M. 545, 641 P.2d 1092, this

 2 Court was tasked with deciding when the plaintiff’s disability began in order to apply

 3 Section 52-1-48, which at the time stated that benefits “shall be based on, and limited

 4 to, the benefits in effect on the date of the accidental injury resulting in disability or

 5 death.” Id. ¶ 3 (internal quotation marks and citation omitted). According to Lovato,

 6 “[d]isability begins when a compensable injury manifests itself and wage-earning

 7 capacity is [affected].” Id. ¶ 5 (emphasis added). The Lovato court stated,

 8          “Plaintiff was able to work only three days out of the approximately five
 9          months following the accident, and only three and one-half weeks out
10          of the approximately eight months following the accident. It is clear that
11          a compensable injury manifested itself immediately following the
12          accident and continued for a substantial period of time, and that
13          plaintiff’s wage-earning capacity had been [affected] since the date of
14          the accident.”

15 Id.; see also Martinez v. Darby Constr. Co., 1989-NMSC-069, ¶ 12, 109 N.M. 146,

16 782 P.2d 904 (“A compensable injury requires some legal disability or inability to

17 perform work[.]”).

18   {27}   In Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680, our

19 Supreme Court considered when a compensable injury occurred for purposes of

20 determining whether an employee had given timely notice of a work-related injury

21 to his or her employer. Our Supreme Court concluded that the Act “does not

22 contemplate the payment of damages for accidental injuries, no matter how painful.



                                               16
 1 It is only the disability or loss of earning power which results from the injuries that

 2 calls for compensation. So when the [A]ct speaks of the occurrence of injury it refers

 3 to compensable injuries, and these occur when disability appears.” Id. ¶ 10 (emphasis

 4 added) (internal quotation marks and citation omitted).

 5   {28}   Worker stopped working for Employer on December 21, 2012. She continued

 6 to receive her regular salary as sick leave benefits through March 31, 2013. Worker

 7 terminated her employment with Employer effective March 31, 2013 by retiring.

 8 Worker therefore stopped receiving her regular wage as of March 31, 2013, to which

 9 both Worker and Employer stipulated. Worker therefore was not eligible to be

10 compensated by disability benefits under the Act until April 1, 2013. See Rayburn v.

11 Boys Super Mkt., Inc., 1964-NMSC-201, ¶¶ 7-9, 74 N.M. 712, 397 P.2d 953 (holding

12 that the worker was not disabled and right to workers’ compensation did not arise

13 while worker remained employed and earning his regular wage); Redhouse v. Pub.

14 Serv. Co. of N.M., 1988-NMCA-034, ¶¶ 8, 12, 107 N.M. 389, 758 P.2d 803 (holding

15 that employer’s payment of sick leave negated obligation to pay workers’

16 compensation benefits; workers are not “entitled to both paid accident leave and

17 worker’s compensation”); De La Torre v. Kennecott Copper Corp., 1976-NMCA-

18 108, ¶¶ 8-15, 89 N.M. 683, 556 P.2d 839 (holding that the obligation to pay workers’

19 compensation benefits did not arise while the worker was paid sick leave). Further,



                                             17
 1 the WCJ concluded that Worker was entitled to TTD benefits from April 1, 2013

 2 through January 15, 2014, an important determination Employer did not appeal and

 3 in fact agreed was binding upon the death benefits action.

 4   {29}   Worker was first entitled to compensation on April 1, 2013, and therefore knew

 5 or should have known that she had a compensable injury on April 1, 2013. The

 6 limitations period of Section 52-1-46 was therefore triggered on April 1, 2013, which

 7 was within two years of Worker’s death on November 12, 2014. We therefore affirm

 8 the WCJ’s conclusion that Section 52-1-46’s limitations period was triggered on

 9 April 1, 2013.

10 II.      The WCJ Erred in Excluding the New Mexico Cancer Center Records and
11          Dr. Richard Giudice’s Testimony From the Death Benefits Trial

12   {30}   As stated above, Section 52-1-46 authorizes payment of death benefits to a

13 deceased worker’s eligible dependents or other persons “if an accidental injury

14 sustained by a worker proximately results in the worker’s death[.]” Section 52-1-

15 51(C) provides that, “[o]nly a health care provider who has treated the worker

16 pursuant to Section 52-1-49 . . . or the health care provider providing the independent

17 medical examination [(IME)] pursuant to this section may offer testimony at any

18 workers’ compensation hearing concerning the particular injury in question.” Section

19 52-1-49 provides for selection of a health care provider to provide treatment for a

20 worker’s work-related injury. Only Drs. Liljestrand and Tolber had been selected to

                                              18
 1 treat Worker for her ABPA, and no health care provider had conducted an IME on

 2 Worker.

 3   {31}   At the beginning of the November 12, 2015 death benefits trial, the WCJ

 4 addressed admission of exhibits. Claimant objected to Employer’s proffer of Dr.

 5 Giudice’s February 21, 2014 and September 14, 2015 depositions and the records of

 6 the New Mexico Cancer Center. Claimant argued that Section 52-1-51(C) limits

 7 testimony at any workers’ compensation hearing about the particular work-related

 8 injury in question, whether it results in an injury or death, to authorized health care

 9 providers and providers who perform an IME. Employer argued that the statute was

10 concerned with the injury and resulting disability, and that death and its proximate

11 cause was a separate question not covered by it. The WCJ agreed with Claimant:

12          I’m going to rule that the deposition testimony [and] records of Dr.
13          Giudice will be excluded from this hearing as a result of [Section] 52-1-
14          51(C) which indicates that only [a] health care provider [that] has treated
15          Worker or provided an IME may offer testimony at a worker’s comp
16          hearing concerning particular injury in question. I think [that is the] case
17          even though it deals with, . . . I guess, the cause of death of Worker still
18          concerns the injury in question[.]

19 Later in the hearing Employer moved the WCJ to reconsider his ruling regarding the

20 New Mexico Cancer Center records. The WCJ denied the motion: “I am obviously

21 curious about what’s in those records but I think given the fact—the wording of

22 [Section 52-1-51(C)], I’m going to deny the request, . . . I’ve reconsidered it, and my



                                                19
 1 ruling remains the same.” Thus, the record is clear that the WCJ’s sole basis for

 2 excluding the evidence was his construction of Section 52-1-51(C).

 3 A.       Standard of Review

 4   {32}   “With respect to the admission or exclusion of evidence, we generally apply

 5 an abuse of discretion standard [when] the application of an evidentiary rule involves

 6 an exercise of discretion or judgment, but we apply a de novo standard to review any

 7 interpretations of law underlying the evidentiary ruling.” DeWitt, 2009-NMSC-032,

 8 ¶ 13. “In reviewing a WCJ’s interpretation of statutory requirements, we apply a de

 9 novo standard of review.” Id. ¶ 14.

10 B.       Principles of Statutory Construction

11   {33}   “When interpreting statutes, [the courts’] responsibility is to search for and give

12 effect to the intent of the [L]egislature. . . . Our understanding of legislative intent is

13 based primarily on the language of the statute, and we will first consider and apply

14 the plain meaning of such language.” Cummings v. X-Ray Assocs. of N.M., P.C.,

15 1996-NMSC-035, ¶ 44, 121 N.M. 821, 918 P.2d 1321 (citation omitted). Courts apply

16 the plain meaning rule to the Act. See, e.g., Chavez v. Mountain States Constructors,

17 1996-NMSC-070, ¶ 23, 122 N.M. 579, 929 P.2d 971.

18   {34}   However, “[i]f the relevant statutory language is unclear, ambiguous, or

19 reasonably subject to multiple interpretations, then [a court] should proceed with



                                                20
 1 further statutory analysis.” State v. Almanzar, 2014-NMSC-001, ¶ 15, 316 P.3d 183;

 2 accord, United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 16, 148

 3 N.M. 426, 237 P.3d 728 (“Because we cannot definitively interpret the statute by a

 4 simple consideration of statutory language that is susceptible to more than one

 5 interpretation on its face, we must look to other guides of statutory interpretation.”);

 6 Citation Bingo, Ltd. v. Otten, 1996-NMSC-003, ¶ 21, 121 N.M. 205, 910 P.2d 281

 7 (stating where statutory language is ambiguous or otherwise not determinative, our

 8 Supreme Court will resort to principles of statutory construction).

 9   {35}   An important principle of statutory construction is to consider statutory

10 context. We “look to other statutes in pari materia.” United Rentals Nw., Inc., 2010-

11 NMSC-030, ¶ 22 (internal quotation marks and citation omitted). “We are to read the

12 statute in its entirety and construe each part in connection with every other part to

13 produce a harmonious whole.” Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 14,

14 121 N.M. 764, 918 P.2d 350; accord, DeWitt, 2009-NMSC-032, ¶ 14 (stating that

15 provisions of the Act will be construed together to produce a harmonious whole).

16 “We will construe the entire statute as a whole so that all the provisions will be

17 considered in relation to one another.” N.M. Bd. of Veterinary Med. v. Riegger, 2007-

18 NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947 (internal quotation marks and citation

19 omitted). “[W]hen expounding a statute, we must not be guided by a single sentence



                                              21
 1 or member of a sentence, but look to the provisions of the whole law, and to its object

 2 and policy.” Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 35, 333

 3 P.3d 947 (internal quotation marks and citation omitted).

 4   {36}   Further, the plain meaning rule is not absolute. The rule “does not require a

 5 mechanical, literal interpretation of the statutory language. . . . If the strict wording

 6 of the law suggests an absurd result, we may interpret the statute to avoid such a

 7 result.” Cummings, 1996-NMSC-035, ¶ 45 (citations omitted); accord Sims v. Sims,

 8 1996-NMSC-078, ¶ 21, 122 N.M. 618, 930 P.2d 153 (stating that the plain meaning

 9 rule “does not require a wooden literal interpretation of all statutory language”). “We

10 will avoid any literal interpretation that leads to an absurd or unreasonable result and

11 threatens to convict the legislature of imbecility.” Chavez, 1996-NMSC-070, ¶ 24

12 (internal quotation marks and citation omitted). Stated another way, “principles of

13 statutory construction require that a statute be interpreted with logic and common

14 sense to avoid an absurd result.” State v. Portillo, 1990-NMSC-055, ¶ 10, 110 N.M.

15 135, 793 P.2d 265.

16 C.       The WCJ Erred in Determining That Section 52-1-51(C) Barred
17          Admission and Consideration of the Cancer Treatment Records and
18          Deposition of Dr. Giudice in Determining the Cause of Worker’s Death

19   {37}   Section 52-1-51(C) provides that only a treating health care provider selected

20 pursuant to Section 52-1-49 or a health care provider who has been designated



                                              22
 1 pursuant to the same statute to conduct an IME may testify “at any workers’

 2 compensation hearing concerning the particular injury in question.” The question

 3 before us is whether Section 52-1-51(C) barred all health care providers other than

 4 Dr. Liljestrand and Dr. Tolber from testifying about the cause of Worker’s death at

 5 the death benefits trial. The answer turns on the meaning of the phrase, “hearing

 6 concerning the particular injury in question.” Id.

 7   {38}   It is not clear from the plain meaning of the words of Section 52-1-51(C)

 8 whether it applies to a Section 52-1-46 hearing. On the one hand, the subject of a

 9 Section 52-1-46 death benefits hearing can be characterized as the work-related

10 injury, specifically, whether the death proximately resulted from it. This would

11 suggest that Section 52-1-51(C)’s limitation on health care provider testimony

12 extends to a death benefits hearing. On the other hand, the foregoing phrase can be

13 read to imply negatively that there can be a workers’ compensation hearing at which

14 medical testimony is given where the subject is not the particular injury in question.

15 The Legislature did not, for example, broadly provide that Section 52-1-51(C) is

16 applicable to any workers’ compensation hearing concerning a medical issue.

17 Further, one can characterize the subject of a death benefits hearing as not “the

18 particular injury in question,” i.e., the work-related injury itself, but rather the cause

19 of the death. This would suggest that Section 52-1-51(C)’s limitation on health care



                                               23
 1 provider testimony does not extend to a death benefits hearing. Because the

 2 applicability of the language of 52-1-51(C) to a Section 52-1-46 hearing is not clear,

 3 we turn to other bases of statutory construction.

 4 1.       Construction with other statutes

 5   {39}   Section 52-1-51(C) should be read in conjunction with Section 52-1-49, to

 6 which it refers, and the remainder of Section 52-1-51.

 7   {40}   First, Section 52-1-49(A) imposes on a worker’s employer the general

 8 obligation to provide reasonably necessary medical care to treat a work-related injury.

 9 The balance of Section 52-1-49 addresses the manner in which the health care

10 provider who delivers that care is selected.

11   {41}   Section 52-1-49 suggests that Section 52-1-51(C) does not apply to a WCJ’s

12 cause of death determination pursuant to Section 52-1-46. The focus of Section 52-1-

13 49 is solely on the delivery of care necessary to treat the work-related injury. One

14 would not expect a health care provider who is selected to treat the work-related

15 injury to necessarily also treat or even be aware of other medical conditions the

16 worker may be experiencing. Thus, we cannot assume that Section 52-1-49 would be

17 intended to identify health care providers who would be able to address in any

18 knowledgeable and comprehensive manner contributing causes of a worker’s

19 subsequent death.



                                             24
 1   {42}   APS could not possibly have selected Dr. Giudice as Worker’s health care

 2 provider under Section 52-1-49 prior to her death, because he would not have been

 3 treating her work-related injury. And no health care provider could have been

 4 selected under Section 52-1-49 after Worker’s death, because at that point the

 5 provider could no longer treat her. Cf. Grine v. Peabody Nat. Res., 2006-NMSC-031,

 6 ¶¶ 25-26, 140 N.M. 30, 139 P.3d 190 (holding that the physician who briefly

 7 examined worker on one occasion did not qualify as an HCP selected under Section

 8 52-1-49 and thus was not authorized to testify under Section 52-1-51(C)). This

 9 illustrates that under Claimant’s construction, Section 52-1-49 is simply not available

10 as a means of permitting an HCP who is treating a worker for a non-work-related

11 medical condition to qualify to testify about causation at a death benefits hearing.

12   {43}   Second, Section 52-1-51 articulates the method by which disagreements

13 between the worker and the employer over medical issues are to be resolved. Section

14 52-1-51(A) allows the parties to either agree on a healthcare provider who will

15 conduct an IME or petition the WCJ for appointment of a healthcare provider and

16 have the worker undergo an IME. Section 52-1-51(B) describes how the workers’

17 compensation judge shall choose the health care provider to conduct an IME. Section

18 52-1-51(E) provides that the worker “shall travel” to the place at which the IME shall

19 be conducted and receive compensation for his or her travel expenses.



                                             25
 1   {44}   Under Section 52-1-51 independent medical examiners can be appointed only

 2 to address concerns relating to the provision of medical care or disability

 3 benefits—that is, matters arising while the worker is alive. Section 52-1-51(A)

 4 contemplates that the worker will “undergo” an IME, and Section 52-1-51(E) requires

 5 that the worker “shall travel” to the IME location. Further, all of the examples of

 6 disputed medical issues set forth in Section 52-1-51(A) concern the provision of care

 7 or benefits to living workers. Cf. State v. Alverson, 2013-NMCA-091, ¶ 11, 308 P.3d

 8 1027 (“The rule of ejusdem generis requires that where general words follow an

 9 enumeration of persons or things of a particular and specific meaning, the general

10 words are not construed in their widest extent but are instead construed as applying

11 to persons or things of the same kind or class as those specifically mentioned.”

12 (alteration, internal quotation marks, and citation omitted)).

13   {45}   Like Section 52-1-49, these provisions suggest that Section 52-1-51(C) does

14 not apply to a WCJ’s cause of death determination pursuant to Section 52-1-46. We

15 note as well for the same reasons that, under Claimant’s construction of Section 52-1-

16 51(C), a physician who performs an autopsy could not testify about the cause of death

17 at a death benefits hearing: Section 52-1-51(C) specifically states that only a health

18 care provider who performs an IME “pursuant to this section” may testify at a

19 hearing. Indeed, in contrast to NMSA 1978, § 52-3-40 (1989), which authorizes



                                             26
 1 autopsies to determine the cause of death in the context of a claim for compensation

 2 filed under the New Mexico Occupational Disease Disablement Act, NMSA 1978,

 3 §§ 52-3-1 to -60 (1945, as amended through 2015), nowhere in the Act is a provision

 4 made for an autopsy.

 5   {46}   The particular facts of this case highlight the evidentiary shortcomings that

 6 result from limiting testimony about the cause of death to those HCPs who have

 7 treated or otherwise addressed only a worker’s work-related injury in accordance with

 8 Sections 52-1-49 and -51. It is undisputed that Worker was suffering from a

 9 recurrence of metastatic breast cancer starting in February 2012, which was within

10 six months of when Worker was exposed to the aspergillus mold in her classroom that

11 ultimately led to the diagnosis of ABPA. Dr. Giudice stated that individuals such as

12 Worker who have metastatic breast cancer have an average life expectancy of two to

13 five years from the time of their diagnosis. Dr. Liljestrand admitted that although he

14 listed the causes of death on Worker’s death certificate as pneumonia and chronic

15 pneumonitis, he could not verify that he looked at a single medical record in making

16 that determination. Dr. Liljestrand also could not verify that he relied on sources of

17 information in determining Worker’s cause of death other than a verbal recitation

18 from Claimant. Similarly, Dr. Tolber’s information about Worker’s medical condition

19 after September 2015 and the circumstances of her death was limited to his



                                              27
 1 conversation with Claimant. Dr. Liljestrand last saw Worker eight months before she

 2 died, and Dr. Tolber last saw Worker a month and a half before she died. In contrast,

 3 Dr. Giudice saw Worker the day before she died. Dr. Giudice’s testimony and records

 4 concerning Worker’s metastatic breast cancer thus would appear to be not only

 5 relevant but crucial in determining Worker’s cause of death.

 6 2.       Avoiding an absurd construction

 7   {47}   Construing Section 52-1-51(C) to apply to a Section 52-1-46 death benefits

 8 hearing can lead to a practical absurdity. Assume a worker dies from a heart attack

 9 while at work. Because of the lack of any previous work-related injuries, there are no

10 HCPs who had been selected under Section 52-1-49. Assume as well that the

11 employer contests worker’s survivor’s death benefits claim that the death proximately

12 resulted from an on-the-job accidental injury. In this situation, neither the worker nor

13 the employer would be permitted to call any HCPs to testify about the cause of death.

14 But because the worker’s survivor would bear the burden of proving causation by

15 expert medical testimony, see Grine v. Peabody Natural Resources, 2005-NMCA-

16 075, ¶ 24, 137 N.M. 649, 114 P.3d 329, rev’d on other grounds by 2006-NMSC-031,

17 the claim would be denied without any consideration of the evidence that medical

18 professionals might be able to provide regarding the cause of death. Cf. Mieras v.

19 Dyncorp, 1996-NMCA-095, 122 N.M. 401, 925 P.2d 518 (presenting factual scenario



                                              28
 1 that parallels this hypothetical; however, applicability of Section 52-1-51(C) to

 2 Section 52-1-46 death benefits hearing was not addressed).

 3   {48}   This case presents the equally problematic scenario in which at the time of her

 4 death, a worker is suffering from two serious medical conditions, only one of which

 5 is work-related. Such a scenario, even if not common, is hardly unique. We do not

 6 believe that the Legislature intended to limit the WCJ in any resulting Section 52-1-

 7 46 death benefits claim that the work-related condition caused the worker’s death

 8 from hearing only the testimony of health care providers selected under Section 52-1-

 9 49 or 52-1-51, who by reason of their limited assignment may have only a partial and

10 incomplete understanding of the entirety of the worker’s medical circumstances.

11 Conversely, we do not believe that the Legislature intended to bar the testimony of

12 health care providers who were treating the worker immediately before her death and,

13 as a result, could be expected to have the best understanding of the worker’s overall

14 condition and the cause or causes of death simply because they were treating a non-

15 work-related condition. We will not assume that the Legislature would mandate that

16 the WCJ should have only a one-sided or otherwise limited picture of the worker’s

17 health at the time of her death.

18   {49}   This hypothetical example and the facts of this case illustrate the fundamental

19 problem with limiting testimony about the cause of death to health care professionals



                                              29
 1 who are either selected pursuant to Section 52-1-49 or appointed to conduct IMEs:

 2 there is a disconnect between the work-related injury issues—all arising while the

 3 worker is alive—that those professionals are addressing, and the cause of death issue

 4 that is the focus of Section 52-1-46. It is precisely because Section 52-1-49’s and

 5 Section 52-1-51’s provisions for selection of HCPs and IME examiners, respectively,

 6 are confined to the treatment and assessment of work-related injuries that it is absurd

 7 to identify them as the exclusive universe of witnesses who can testify about the

 8 cause or causes of a worker’s death.

 9 3.       Case law precedent

10   {50}   New Mexico case law precedent does not require a contrary construction of

11 Section 52-1-51(C), because no case has addressed the statute’s applicability to

12 testimony about the cause of death in a Section 52-1-46 proceeding.

13   {51}   In Grine, a worker suffered a heart attack in October 2000 while at work and

14 died in June 2002. 2006-NMSC-031, ¶ 1. He had pursued a claim for workers’

15 compensation disability benefits, and after his death his widow was substituted as

16 plaintiff to continue that claim as well as assert a claim for death benefits. Id. There

17 apparently was no dispute that his death was attributable to the heart attack, but the

18 employer vigorously disputed that the underlying heart attack occurred because of his

19 job. Id. ¶¶ 12-15; see §§ 52-1-9(C), -28(A). Our Supreme Court concluded that the



                                              30
 1 doctor whom the employer had engaged to examine the worker prior to his death, and

 2 who later testified about whether the heart attack was caused by employment

 3 conditions, did not qualify under Section 52-1-49 as a selected HCP because he never

 4 actually treated the work-related injury. Therefore, the doctor’s testimony on that

 5 issue was inadmissible pursuant to Section 52-1-51(C). Grine, 2006-NMSC-031,

 6 ¶¶ 23-25. Further, this issue arose not in the context of whether under Section 52-1-46

 7 the death proximately resulted from the initial heart attack, but rather whether under

 8 Section 52-1-28(B) it could be established that the heart attack was an accidental

 9 injury arising out of, and in the course of, the worker’s employment. Grine, 2006-

10 NMSC-031, ¶ 29. Thus, Grine provides no guidance on the issue that we address

11 herein.

12   {52}    The reasoning in DeWitt in some respects tracks our analysis here. DeWitt

13 addressed the selection of a health care provider under Section 52-1-49 and the

14 admissibility of that person’s testimony under Section 52-1-51(C), but not in the

15 context of a death. DeWitt, 2009-NMSC-032, ¶ 8. A worker with a pre-existing back

16 condition experienced back pain following an accident at work. Id. ¶ 2. She

17 underwent surgery and later filed a claim for workers’ compensation benefits. Id.

18 ¶¶ 4-5. The worker then selected, as her health care providers under Section 52-1-49,

19 the doctors who previously had treated her and performed the surgery. DeWitt, 2009-



                                             31
 1 NMSC-032, ¶ 5. At trial on her claim for disability benefits, the WCJ excluded those

 2 doctors’ testimony (which the worker proffered) on the theory that Section 52-1-

 3 51(C) did not permit testimony that was based on treatment provided before the date

 4 on which the doctors became HCPs for workers’ compensation purposes. DeWitt,

 5 2009-NMSC-032, ¶ 8. Our Supreme Court rejected this reasoning. The Court noted

 6 that related statutes must be read together, id. ¶ 30, and that the construction given by

 7 the WCJ to Section 52-1-51(C) acted absurdly as an impediment to the selection of

 8 health care practitioners pursuant to Section 52-1-49, because they could not be called

 9 upon to testify about their care, treatment, and examinations of workers before and

10 after their selection. DeWitt, 2009-NMSC-032, ¶ 31. Our Supreme Court observed as

11 well that:

12          Employer’s construction would preclude the ability of an HCP, who had
13          treated a worker before the relevant work-related injury, from testifying
14          about the worker’s complete medical history. This would inhibit a full
15          analysis of the causation issues that may be so critically important in
16          these cases. In effectuating the intent of the Legislature, we must avoid
17          any interpretations that would lead to absurd or unreasonable results.

18 Id. This language in DeWitt indirectly supports a construction of Section 52-1-51(C)

19 that permits a WCJ to consider all the relevant evidence regarding the cause of a

20 worker’s death.

21   {53}   We recognize that in these decisions our Supreme Court concluded that in

22 enacting Section 52-1-51, “the Legislature intended to limit the use and number of

                                               32
 1 experts in workers’ compensation cases,” Grine, 2006-NMSC-031, ¶ 19, and that it

 2 was “the obvious intent of the Legislature [in enacting Section 52-1-51] to avoid

 3 testimony-shopping[.]” DeWitt, 2009-NMSC-032, ¶ 35. However, construing the

 4 statute in the manner advocated by Claimant here would not advance the apparent

 5 underlying legislative purpose of minimizing the cost of treating the worker’s work-

 6 related injury, Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 28,

 7 134 N.M. 421, 77 P.3d 1014, and instead would serve only to bar the WCJ’s

 8 consideration of potentially highly relevant information in arriving at a correct

 9 decision about the truth of what caused a worker’s death. We observe as well that

10 Employer’s proffer of Dr. Giudice as a causation witness in any event can hardly be

11 criticized as testimony-shopping: at the time of Worker’s death he had been her

12 treating doctor (albeit for her cancer as opposed to her ABPA) since 2009.

13 4.       Summary

14   {54}   For these reasons, we conclude that Section 52-1-51(C) does not limit expert

15 testimony regarding the circumstances and cause of a worker’s death in connection

16 with a claim for death benefits under Section 52-1-46 to that given by an HCP who

17 has provided care for a worker’s work-related injury pursuant to Section 52-1-49, or

18 an independent medical examiner identified pursuant to Section 52-1-51(A). We

19 therefore reverse the WCJ’s rulings based on Section 52-1-51(C) that Dr. Giudice’s



                                             33
 1 depositions and the records of the New Mexico Cancer Center were inadmissible and

 2 the medical evidence of cause of death was uncontradicted,           and the WCJ’s

 3 determination regarding the cause of Worker’s death. We also remand this case for

 4 retrial of the issue of whether, in the words of Section 52-1-46, Worker’s ABPA

 5 “proximately result[ed]” in her death. This Court’s ruling is made solely on the basis

 6 of the WCJ’s erroneous statutory analysis. We have not considered, and do not

 7 presume to suggest, whether Worker would have a basis for objecting to the

 8 admission of this evidence on other grounds or what causation decision the WCJ

 9 ultimately might make following consideration of all admitted evidence. On the

10 contrary, resolution of those issues remain for retrial.

11 III.     The WCJ Erred in Determining the Amount of Death Benefits Awarded
12          to Claimant

13   {55}   In addition to compensation for medical expenses prior to death, funeral

14 expenses, and attorney’s fees, Section 52-1-46 provides for a basic weekly death

15 benefit that tracks a worker’s disability benefit. In particular, where the worker is

16 survived by a widow or widower but no minor children, Section 52-1-46(C)(2)

17 provides the widow or widower with a weekly death benefit of “sixty-six and two-

18 thirds percent of the average weekly wage of the deceased[.]” This benefit is to be

19 paid for 700 weeks, Section 52-1-41(D), or until remarriage, Section 52-1-46(C)(2),

20 whichever comes first. Section 52-1-47(A) establishes a cap of 700 weeks of benefits

                                             34
 1 “for any combination of disabilities . . . or any combination of disability [or] death[,]”

 2 which means that if an employer has paid disability benefits to a worker prior to the

 3 worker’s death, the 700 weeks of death benefits will be reduced by the number of

 4 weeks of disability benefits that previously had been paid.

 5   {56}   In addition to awarding Claimant compensation for Worker’s last medical

 6 expenses, funeral expenses, and attorney’s fees, the WCJ awarded death benefits in

 7 the amount of 99% of two-thirds of Worker’s average weekly wage for 700 weeks,

 8 subject to a credit for the number of weeks of PPD that Employer had paid to Worker

 9 prior to her death.

10   {57}   Employer contends that, if Claimant were entitled to any weekly death benefits

11 at all, the benefits were limited to those that had accrued prior to Worker’s death. As

12 we understand it, Employer’s argument is based on a joint reading of Sections 52-1-

13 46(G) and 52-1-47(C). Section 52-1-46(G) provides that “no compensation benefits

14 payable by reason of a worker’s death shall exceed the maximum weekly

15 compensation benefits as provided in Section[] . . . 52-1-47.” Section 52-1-47(C)

16 provides that “in no case shall compensation benefits for disability continue after the

17 disability ends or after the death of the injured worker[.]” Employer urges that,

18 because disability benefits end upon the death of the worker, Section 52-1-46(G)

19 must mean that death benefits, which Employer characterizes as “unaccrued,” also



                                               35
 1 must end upon death. See Holliday v. Talk of the Town, Inc., 1985-NMCA-024, ¶ 5,

 2 102 N.M. 540, 697 P.2d 959 (noting that “awarded but unaccrued benefits for

 3 disability terminate upon death”).

 4   {58}   If accepted, Employer’s argument would nullify Section 52-1-46’s provision

 5 of weekly death benefits. The relevant statutory language does not support

 6 Employer’s argument. Employer is conflating the maximum weekly amount of the

 7 death benefit (Section 52-1-46(G)) with the provision that the death of the worker

 8 ends disability benefits (Section 52-1-47(C)). That is, Section 52-1-46(G) limits the

 9 maximum weekly death benefit amounts to those payable pursuant to Sections 52-1-

10 41 to -43, and -47, which generally is two-thirds of the worker’s average weekly

11 wage. While Section 52-1-47(C) provides that disability benefits end upon death,

12 Sections 52-1-41(D), -43(B), and -47(B) make clear that death benefits are payable

13 upon death even if disability benefits previously had been paid, up to a maximum of

14 700 weeks of combined disability and death benefits.

15   {59}   In his cross-appeal, Claimant argues that the WCJ erred in awarding weekly

16 death benefits in the amount of 99%, as opposed to 100%, of two-thirds of Worker’s

17 average weekly wage. We agree with Claimant. It appears that the WCJ determined

18 that the death benefit should equal the amount of Workers’ PPD benefit. In doing so,

19 the WCJ erred. Section 52-1-46(C)(2) provides without qualification for a weekly



                                            36
 1 death benefit to a widow or widower in the amount of sixty-six and two-thirds percent

 2 of the worker’s average weekly wage. The amount of the benefit does not vary based

 3 upon whether the worker, prior to death, was totally or partially permanently disabled.

 4 This is logical, given that death can be viewed as entirely terminating a worker’s

 5 wage-earning capacity, and therefore a death benefit should be the same as a total

 6 disability benefit.

 7 CONCLUSION

 8   {60}   We affirm the WCJ’s conclusion that Worker’s death occurred within two years

 9 of her compensable injury. We reverse the WCJ’s exclusion of Dr. Giudice’s

10 deposition testimony and the medical records of the New Mexico Cancer Center from

11 the death benefits trial. We also reverse the WCJ’s resulting conclusion that the

12 medical evidence concerning Worker’s cause of death was uncontradicted. We

13 emphasize that we are remanding to the WCJ for retrial on the causation element of

14 Claimant’s death benefit claim. Last, we reverse the WCJ’s calculation of weekly

15 death benefits to which Claimant would be entitled assuming Claimant prevails on

16 the causation issue. Only if the WCJ determines that Worker’s ABPA “proximately

17 resulted” in her death will it be necessary for the WCJ to recalculate the amount of

18 the weekly death benefit. We vacate the April 21, 2016 compensation order and

19 remand the case for retrial and for further findings consistent with this opinion.



                                             37
1   {61}   IT IS SO ORDERED.


2                               ___________________________________
3                               HENRY M. BOHNHOFF, Judge


4 WE CONCUR:


5 ___________________________________
6 M. MONICA ZAMORA, Judge


7 ___________________________________
8 STEPHEN G. FRENCH, Judge




                                  38
