AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The Worker appealed a workers' compensation judge's (WCJ) order that rated his permanent impairment at 13% instead of the 18% testified to by his health care provider. The appeal involved the admissibility of an impairment evaluation report by Dr. Marjorie Eskay-Auerbach, which the WCJ allowed despite statutory restrictions on who may offer testimony concerning the injury in question.

Procedural History

• Appeal from the Workers’ Compensation Administration, Leonard Padilla, Workers’ Compensation Judge.

Parties' Submissions

• Worker-Appellant: Argued that the WCJ erred in admitting Dr. Eskay-Auerbach's impairment evaluation report, which should have been prohibited under NMSA 1978, Section 52-1-51(C). Contended that without Dr. Eskay-Auerbach's report, the evidence supports a determination of an 18% impairment rating.
• Employer/Insurer-Appellees: Argued that the Worker failed to preserve his argument regarding Dr. Eskay-Auerbach’s report and that the report does not constitute testimony prohibited by Section 52-1-51(C).

Legal Issues

• Whether the WCJ erred in admitting Dr. Eskay-Auerbach's impairment evaluation report as evidence, given the statutory restrictions on testimony concerning the worker's injury.
• Whether substantial evidence supports a permanent impairment rating of 18% for the Worker in the absence of Dr. Eskay-Auerbach's report.

Disposition

• The Court of Appeals reversed the WCJ’s compensation order and remanded for proceedings consistent with the opinion.

Reasons

• The Court, per Judge Cynthia A. Fry, with Judges Jonathan B. Sutin and Linda M. Vanzi concurring, found that:
  The Worker preserved his argument regarding the inadmissibility of Dr. Eskay-Auerbach’s report, despite initially stipulating to the admission of Employer’s exhibit containing the report, because he specifically objected to any opinions of Dr. Eskay-Auerbach being admitted due to Section 52-1-51(C) and moved to strike the report once he became aware of its inclusion (paras 3-4).
  The WCJ erred in concluding that Dr. Eskay-Auerbach’s impairment evaluation report did not constitute testimony and was therefore admissible. The Court determined that the report was subject to the statutory requirement that only a treating physician or a health care provider authorized to administer an independent medical evaluation could offer testimony concerning the injury in question (paras 4-7).
  The Court did not address the Worker's argument that substantial evidence supports an 18% impairment rating because the WCJ did not make such a finding. The Court noted that the Worker is entitled to pursue this argument on remand (para 9).