Banks v. IMC Kalium Carlsbad Potash Co., 21,437.

• Decision Date: 06 September 2002
• Docket Number: No. 21,437.,21,437.
• Citation: 2003 NMCA 16,133 N.M. 199,62 P.3d 290
• Parties: Carolyn BANKS, Worker-Appellant, v. IMC KALIUM CARLSBAD POTASH CO. and Crawford & Company, Employer/Insurer-Appellee.
• Court: Court of Appeals of New Mexico

62 P.3d 290

133 N.M. 199

2003 NMCA 16

Carolyn BANKS, Worker-Appellant, v. IMC KALIUM CARLSBAD POTASH CO. and Crawford & Company, Employer/Insurer-Appellee.

No. 21,437.

Court of Appeals of New Mexico.

September 6, 2002.

Certiorari Granted October 24, 2002.

Royce E. Hoskins, Roswell, NM, for Appellant.

Timothy E. Kapshandy, Sidley, Austin, Brown & Wood, Chicago, IL, Thomas L. Marek, Marek, Francis & Byers, P.A., Carlsbad, NM, for Appellee.

Certiorari Granted, No. 27,714, October 24, 2002.

OPINION

ROBINSON, Judge.

{1} The opinion filed in this case on May 9, 2002 is hereby withdrawn and the following substituted therefor. The motion for rehearing is denied.

{2} This case presents an issue of first impression concerning the standard of admissibility for the testimony of a treating physician in cases adjudicated by the Workers' Compensation Administration (the Administration). We hold that the standards for the admissibility of expert testimony adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and by the New Mexico Supreme Court in State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993) (hereinafter, the Alberico/Daubert standard), cannot be applied in cases adjudicated by the Administration because to do so would violate the provisions of the Workers' Compensation Act (WCA), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2001) and the Occupational Disease Disablement Law (ODDL), NMSA 1978, §§ 52-3-1 to -60 (1945, as amended through 2001). Consequently, we reverse.

I. Factual Background and Proceedings Below

{3} Because the merits of this case were not heard by the Administration, the Workers' Compensation Judge (WCJ) entered no findings or conclusions on the underlying claim. The following is provided by way of background only and is not binding on the WCJ on remand. We have gathered this information from the materials submitted in connection with the motion for summary judgment.

{4} Worker went to work for IMC Kalium Carlsbad Potash Company (IMC) in June 1974. She worked underground in the potash mines at progressively more responsible jobs until early in 1996. During those twenty-two years as an underground miner, Worker was exposed to diesel fuel fumes and nitrate smoke created by the explosions of ammonium nitrate used to blast the ore out of the "face." Over the years, Worker developed a cough and had difficulty breathing, particularly when underground. In her deposition, Worker testified that in 1994 she was diagnosed with asthma. At the time, no one suggested that problem was work-related. At about that time, her family doctor, Dr. Perkowski, advised her to stop working underground. Nevertheless, Worker continued to work underground and her cough and difficulty breathing persisted.

{5} By 1996, Worker's problems had increased to the point that, at her request, she was put on temporary duty working above ground in the main office. Ultimately, Worker's respiratory condition became so severe that she was no longer able to work. In 1997, Worker's doctor referred her to National Jewish Hospital in Denver for evaluation. Dr. Fennelly at National Jewish Hospital was of the opinion "that her exposures to nitrogen oxide, particulates and other respiratory irritants in the underground mining processes have continued to aggravate her airway inflammation." In addition, her chest x-ray showed bronchial wall thickening, consistent with asthma.

{6} Worker began seeing Dr. Ross at the Environmental Health Center in Dallas, Texas in February 1998. On July 17, 1998, Worker filed her benefit claim with the Administration for an occupational disease under the ODDL. Dr. Ross was identified as her treating physician. Dr. Ross diagnosed Worker as suffering from: (1) toxic encephalopathy; (2) reactive airway dysfunction syndrome (RADS); (3) asthma; and (4) chemical sensitivity as a result of exposure to solvents.

{7} On February 22, 2000, Respondents moved to exclude the testimony and medical report of Dr. Ross and any evidence relating to the tests that he had relied on in making his diagnoses. Respondents argued that Dr. Ross' testimony could not meet the Alberico/Daubert standard for the admission of expert testimony pursuant to Rule 11-702 NMRA 2002. In support of their brief, Respondents filed numerous appendices, including reports from various health care providers and three Independent Medical Examiners (IMEs), letters from other health care providers to Respondents' counsel, articles from professional journals, statements from various medical organizations, and other documents. This extensive documentation tended to indicate that some of Dr. Ross' diagnoses were not recognized as valid by other health care providers and that, in the opinion of these health care providers, the tests he used had not been established as sufficiently reliable.

{8} In her response, Worker argued that, as an authorized healthcare provider, Dr. Ross could testify concerning his diagnosis and the causal connection between the work conditions and the diseases. In addition, she contended that the Alberico/Daubert standard did not apply to workers' compensation cases.

{9} Ultimately, the WCJ determined that the Alberico/Daubert standard applied and that Dr. Ross' testimony was not admissible under that standard. Accordingly, the WCJ held that Dr. Ross could not testify. By statute, the only medical experts who can testify at hearings before the Administration are treating physicians and those providers who have been properly authorized as IMEs. See Section 52-1-51(C); Section 52-3-39(C). Thus, the WCJ's ruling left Worker without anyone to testify on her behalf. Respondents filed a motion for summary judgment on this basis. The summary judgment motion was granted. This appeal followed.

II. Discussion

The Alberico/Daubert Standard Does Not Apply to Proceedings Before the Workers' Compensation Administration.

{10} Before 1993, expert testimony was admissible under Rule 11-702 of the Federal Rules of Evidence if the technique or methodology was generally accepted as reliable in the relevant scientific community. Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). In 1993, the United States Supreme Court in Daubert rejected the Frye test and replaced it with a two-part inquiry focused on the relevance of the scientific or other specialized knowledge and the scientific reliability of the method or technique. Daubert contemplated that the trial judge would act as gatekeeper, making a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. In Alberico, the New Mexico Supreme Court adopted the Daubert inquiry, holding that:

the proper inquiry under Rule 702 is whether the subject of the expert's testimony is grounded in valid, objective science, that is "scientific, technical or other specialized knowledge," and whether the underlying scientific technique or method is reliable enough to prove what it purports to prove, that is probative, so that it will assist the trier of fact.

Alberico, 116 N.M. at 168, 861 P.2d at 204. The Alberico/Daubert analysis is not limited to novel scientific theories. State v. Torres, 1999-NMSC-010, ¶ 29, 127 N.M. 20, 976 P.2d 20; accord Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

{11} Whether the Alberico/Daubert standard applies to cases under the WCA or the ODDL is a question of law that this Court reviews de novo. Torres, 1999-NMSC-010, ¶ 28,127 N.M. 20,976 P.2d 20. The few jurisdictions that have addressed similar issues in the context of workers' compensation proceedings before administrative agencies have reached varying results. A number of jurisdictions have not adopted the Daubert standard for expert testimony and have continued to used the Frye test. See Post-Daubert Standards for Admissibility of Scientific and other Expert Evidence in State Courts, 90 A.L.R. 5th 453 (2001). Three jurisdictions that apply the Frye test generally have applied it to compensation proceedings, emphasizing that it only applies to novel scientific theories. U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002) (emphasizing that the Frye standard applies only when an expert attempts to render an opinion that is based upon new or novel scientific techniques); City of Aurora v. Vaughn, 824 P.2d 825, 826 (Colo.App.1991) (indicating that the Frye standard is a "special foundation requirement for novel or new scientific devices or processes involving the evaluation of physical evidence" (emphasis in the original)); K-Mart Corporation v. Morrison, 609 N.E.2d 17, 23-26 (Ind.Ct.App.1993) (holding that infrared thermography has not gained general acceptability in the medical communities that have evaluated this technique for their purposes and, therefore, is deemed inadmissible in Indiana under Frye). On the other hand, Nebraska, which applies the Frye standard, has held that it does not apply to compensation proceedings because those proceedings are not governed by the rules of evidence. Sheridan v. Catering Management, Inc., 252 Neb. 825, 566 N.W.2d 110, 114 (1997).

{12} Jurisdictions that have adopted the Daubert standard or some variation on it are no more uniform in their treatment of its application to compensation proceedings. Connecticut has held that the Daubert standard does not apply in compensation cases because it would be contrary to the spirit of a statute providing that the commission is not bound by common law or statutory rules of evidence or procedure. Mulroy v. Becton Dickinson Co., 48 Conn.App. 774, 712 A.2d 436, 439(998). In a similar vein, Kansas has held that neither Frye nor Daubert applies in administrative compensation proceedings because the rules of evidence do...