Coslett v. Third Street Grocery

• Decision Date: 21 March 1994
• Docket Number: No. 14912,14912
• Citation: 876 P.2d 656,1994 NMCA 46,117 N.M. 727
• Parties: Shelby COSLETT n/k/a Shelby Dingus, Claimant-Appellee, v. THIRD STREET GROCERY and Mountain States Mutual Casualty Company, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 656

876 P.2d 656

117 N.M. 727

Shelby COSLETT n/k/a Shelby Dingus, Claimant-Appellee, v. THIRD STREET GROCERY and Mountain States Mutual Casualty Company, Respondents-Appellants.

No. 14912.

Court of Appeals of New Mexico.

March 21, 1994.

Opinion on Denial of Rehearings May 11, 1994.

Certiorari Denied June 17, 1994.

[117 N.M. 728] Gerald A. Hanrahan, Albuquerque, for claimant-appellee.

Robert Bruce Collins, Donald C. Clifford, Albuquerque, for respondents-appellants.

OPINION

HARTZ, Judge.

Third Street Grocery and Mountain States Mutual Casualty Company (who will be referred to jointly as "Employer") appeal a decision by the Workers' Compensation Judge awarding benefits to Claimant. The accidental injury giving rise to the claim occurred on October 1, 1987. Therefore, as the parties have stipulated, this case is controlled by the Workers' Compensation Act in effect on that date (the 1987 Act), which is set forth in the 1987 Replacement Pamphlet for Chapter 52 of the New Mexico Statutes Annotated.

Employer contends that (1) the 1987 Act prohibited Claimant from proving causation by testimony of a Texas physician not licensed to practice in New Mexico and (2) the statute of limitations barred the Judge from considering Claimant's second job at the time of the accident in computing her disability benefits. We reject Employer's first contention but agree with the second. We therefore reverse and remand for entry of an amended award.

I. TESTIMONY BY TEXAS PHYSICIAN

Employer makes a very straightforward argument regarding the inadmissibility of the causation testimony by the Texas physician. NMSA 1978, Section 52-1-28(B) (Repl.Pamp.1987), states:

In all cases where the employer or his insurance carrier deny that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider, as defined in Section 52-4-1 NMSA 1978, testifying within the area of his expertise. (Emphasis added.)

The pertinent language of NMSA 1978, Section 52-4-1 (Repl.Pamp.1987), relied upon by Employer is:

A. As used in this section, "health care provider" means:

(1) any hospital which is maintained by the state or any political subdivision of the state, or any place which is currently licensed as a hospital by the health and environment department ...

(2) an optometrist licensed pursuant to the provisions of Chapter 61, Article 2 NMSA 1978;

(3) a chiropractor licensed pursuant to the provisions of Chapter 61, Article 4 NMSA 1978;

(4) a dentist licensed pursuant to the provisions of Chapter 61, Article 5 NMSA 1978;

(5) a physician licensed pursuant to the provisions of Chapter 61, Article 6 NMSA 1978;

(6) a podiatrist licensed pursuant to the provisions of Chapter 61, Article 8 NMSA 1978;

(7) an osteopathic physician licensed pursuant to the provisions of Chapter 61, Article 10 NMSA 1978;

(8) a psychologist who is duly licensed or certified in the state where the service is rendered, holding a doctorate degree in psychology and having at least two years clinical experience in a recognized health setting, or who has met the standards of the national register of health services providers in psychology; or

(9) a certified nurse-midwife licensed by the board of nursing as a registered nurse and registered with the health services division of the health and environment department as a certified nurse-midwife.

Thus, the only physicians who are health care providers defined in Section 52-4-1 are physicians "licensed pursuant to" New Mexico law. Employer argues that because Section 52-1-28 states that causation can be established only through testimony by health care providers defined in Section 52-4-1, the testimony of the Texas physician was not competent to establish causation. This argument has more than superficial appeal.

Nevertheless, we reject Employer's argument. Based on our understanding of the purpose of Section 52-4-1, the history and purpose of Section 52-1-28, and the contexts in which the phrase "health care provider, as defined in Section 52-4-1" is used throughout the 1987 Act, we conclude that the phrase was used by the legislature as a shorthand expression to refer to the licensed occupations listed in Section 52-4-1, without reference to the requirement of licensure in New Mexico.

Before beginning our analysis we should note that imprecision in the language of New Mexico's workers' compensation laws is hardly unprecedented. Particularly in the past decade, amendments and revisions to these laws have been products of extensive public debate and hard-fought compromise. The compromise is likely to be so tenuous that no interested party desires to jeopardize it by seeking to fine tune statutory language. Consequently, various provisions of the statutes may reflect general principles rather than detailed recipes. What we once said about the 1986 amendments can apply here as well:

[T]he legislature ... was not concerned with the detailed interrelationships among the provisions of the Act and how the Act would be applied to various recurring, although unusual, circumstances. The apparent legislative intent was to establish certain benchmarks and to leave to the courts the task of "rationalizing" the provisions of the statute.

Barela v. Midcon of New Mexico, 109 N.M. 360, 364, 785 P.2d 271, 275 (Ct.App.), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1989).

Of course, we should not use inexactitude in the drafting of statutes as an excuse to impose our personal values on a legislative compromise. But the fear of judicial usurpation of the legislative role should not compel the courts always to adopt a literal interpretation--that interpretation of a phrase in a statute which would, aside from context, be the most straightforward. The judge's first duty is to determine the meaning of the language used by the legislature. When the context strongly suggests that an alternative interpretation better advances the purpose of the legislation and there is no apparent reason why the legislature would have preferred the literal interpretation, judicial adoption of the literal interpretation is an abdication of responsibility.

We now turn to the pertinent statutory provisions. Section 52-4-1 was enacted in 1983, see 1983 N.M.Laws, ch. 116, Sec. 1, and remained unchanged in the 1987 Act. Prior to 1987 no other section cross-referenced it. Its purpose is set forth in its title: "Definitions; restrictions on choice of health care providers prohibited under policies of workmen's compensation and occupational disease disablement." Provisions like Section 52-4-1 are often called "freedom of choice" laws. See, e.g., NMSA 1978, Sec. 59A-22-32 (Repl.Pamp.1992) (providing freedom of choice in health insurance contracts). The operative language, which appears in Section 52-4-1(C), states:

Whenever any health services contract [as defined in Section 52-4-1(B) ] ... provides for payment, reimbursement or indemnification for any service which is within the lawful scope of practice of a health care provider in this state, such payment, reimbursement or indemnification shall not be denied when such service is rendered by the health care provider[.]

In other words, roughly speaking, when treatment for a compensable injury is within the proper scope of the expertise of a health care provider, the workers' compensation insurer must pay for the treatment; the insurer cannot refuse to pay for the services of, say, an osteopath or podiatrist.

The aspect of Section 52-4-1 which is critical to the present case is that freedom of choice is restricted to only those health care providers who are licensed in New Mexico (with the exception of psychologists, who need only be "licensed or certified in the state where the service is rendered," Section 52-4-1(A)(8)). This restriction is perhaps not surprising because the impetus for such freedom-of-choice enactments frequently comes from the New Mexico practitioners who will benefit. In any event, it is worth noting that Section 52-4-1 does not prohibit insurance coverage for treatment by health care professionals not licensed in New Mexico. It is just that such coverage is not mandated by this section.

How did the definition in a freedom-of-choice provision become incorporated into a section of the 1987 Act governing the qualification of expert witnesses? Until 1987, NMSA 1978, Section 52-1-28(B) (Orig.Pamp.) required proof of causation "as a medical probability by expert medical testimony." Testimony by medical doctors and osteopaths satisfied the statute. See Medina v. Original Hamburger Stand, 105 N.M. 78, 728 P.2d 488 (Ct.App.1986) (osteopaths). In Fierro v. Stanley's Hardware, 104 N.M. 401, 410, 722 P.2d 652, 661 (Ct.App.1985), rev'd on other grounds, 104 N.M. 50, 716 P.2d 241 (1986), however, this Court held that testimony by a psychologist was not "expert medical testimony." We followed Fierro in an unpublished opinion holding that testimony by a chiropractor also failed to satisfy Section 52-1-28. See Vallejos v. KNC, Inc.--A Rogers Co., 105 N.M. 613, 735 P.2d 530 (1987) (reversing our memorandum opinion). The legislature responded promptly. It "overruled" Fierro at its next legislative session, amending Section 52-1-28 by substituting "expert testimony of a health care provider, as defined in Section 52-4-1" for "expert medical testimony." Consequently, psychologists, chiropractors, and other health care practitioners could testify to causation. The timing and content of the 1987 amendment strongly imply a legislative determination that the prior language was restricting workers too much in how they could prove causation. Employer suggests that the 1987 amendment was actually intended to restrict case law allowing causation testimony because prior to the effective date of the 1987 amendment the Supreme Court had overruled Fierro and its progeny in Madrid v. University of...