A. After an injury to a worker and subject to the requirements of the Workers' Compensation Act, and continuing as long as medical or related treatment is reasonably necessary, the employer shall, subject to the provisions of this section, provide the worker in a timely manner reasonable and necessary health care services from a health care provider.
B. The employer shall initially either select the health care provider for the injured worker or permit the injured worker to make the selection. Subject to the provisions of this section, that selection shall be in effect during the first sixty days from the date the worker receives treatment from the initially selected health care provider.
C. After the expiration of the initial sixty-day period set forth in Subsection B of this section, the party who did not make the initial selection may select a health care provider of his choice. Unless the worker and employer otherwise agree, the party seeking such a change shall file a notice of the name and address of his choice of health care provider with the other party at least ten days before treatment from that health care provider begins. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to enable this notice to be promptly and efficiently provided. This notice may be filed on or after the fiftieth day of the sixty-day period set forth in Subsection B of this section.
D. If a party objects to the choice of health care provider made pursuant to Subsection C of this section, then he shall file an objection to that choice pursuant to Subsection E of this section with a workers' compensation judge within three days from receiving the notice. He shall also provide notice of that objection to the other party. If the employer does not file his objection within the three-day period, then he shall be liable for the cost of treatment provided by the worker's health care provider until the employer does file his objection and the workers' compensation judge has rendered his decision as set forth in Subsection F of this section. If the worker does not file his objection within the three-day period, then the employer shall only be liable for the cost of treatment from the health care provider selected by the employer, subject to the provisions of Subsections E, F and G of this section. Nothing in this section shall remove the employer's obligation to provide reasonable and necessary health care services to the worker so long as the worker complies with the provisions of this section.
E. If the worker or employer disagrees with the choice of the health care provider of the other party at any time, including the initial sixty-day period, and they cannot otherwise agree, then he shall submit a request for a change of health care provider to a workers' compensation judge. The director shall adopt rules and regulations governing forms, which employers shall post in conspicuous places, to submit to a workers' compensation judge a request for change of a health care provider.
F. The request shall state the reasons for the request and may state the applicant's choice for a different health care provider. The applicant shall bear the burden of proving to the workers' compensation judge that the care being received is not reasonable. The workers' compensation judge shall render his decision within seven days from the date the request was submitted. If the workers' compensation judge grants the request, he shall designate either the applicant's choice of health care provider or a different health care provider.
G. If the worker continues to receive treatment or services from a health care provider rejected by the employer and not in compliance with the workers' compensation judge's ruling, then the employer is not required to pay for any of the additional treatment or services provided to that worker by that health care provider.
H. In all cases where the injury is such as to permit the use of artificial members, including teeth and eyes, the employer shall pay for the artificial members.
History: 1953 Comp., § 59-10-19.1, enacted by Laws 1959, ch. 67, § 27; 1963, ch. 269, § 3; 1965, ch. 252, § 4; 1971, ch. 261, § 5; 1973, ch. 240, § 9; 1977, ch. 275, § 3; 1987, ch. 235, § 21; 1990 (2nd S.S.), ch. 2, § 20.
ANNOTATIONSThe 1990 (2nd S.S.) amendment, effective January 1, 1991, inserted "selection of health care provider" in the section catchline, rewrote Subsections A and B, added Subsections C to G, and redesignated former Subsection C as Subsection H, substituting "pay for" for "furnish" therein.
I. GENERAL CONSIDERATION.
Purpose. — This section mandates that an employer will provide an injured worker reasonable and necessary health care services and establishes the procedures by which the worker's health care provider is selected and changed. City of Albuquerque v. Sanchez, 1992-NMCA-038, 113 N.M. 721, 832 P.2d 412.
Provisions of the act are remedial in nature and must be construed liberally. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323.
Strained construction proscribed. — The Workmen's (Workers') Compensation Act is remedial in nature and its language is to be liberally construed, but a strained construction is proscribed. Those rights and remedies can only be received when specified by statute. Armstrong v. Stearns-Roger Elec. Contractors, 1982-NMCA-177, 99 N.M. 275, 657 P.2d 131 (decided under former law).
Right to payment for medical and hospital expenses is substantive right and must be measured by the provisions of the act in force at the time the cause of action accrues. Noffsker v. K. Barnett & Sons, 1963-NMSC-156, 72 N.M. 471, 384 P.2d 1022.
Benefits payable as result of an injury. — In order for medical benefits to be payable as a result of an "injury" sustained by the worker within the contemplation of this section, the injury must be of such nature that any "impairment" which may result therefrom would be compensable under 52-1-24 NMSA 1978. Douglass v. State, 1991-NMCA-041, 112 N.M. 183, 812 P.2d 1331, cert. denied, 112 N.M. 77, 811 P.2d 575.
No retroactive effect to amendment increasing medical benefits. — To give the amendment increasing the maximum allowable medical benefits under workmen's (workers') compensation a retroactive effect would alter a substantial term of the contract existing between employer and employee at the time of injury, contrary to the constitutional provisions prohibiting impairment of contracts. Noffsker v. K. Barnett & Sons, 1963-NMSC-156, 72 N.M. 471, 384 P.2d 1022.
Services incident to and concomitant part of compensable injury. — The medical and surgical treatment which the employee is entitled to receive by former 59-10-19, 1953 Comp., is incidental to and a concomitant part of a compensable injury for which the employer is liable under the act; and the employer is only liable for such services where the employee would be entitled to compensation. State ex rel. Gibbins v. Dist. Ct., 1958-NMSC-118, 65 N.M. 1, 330 P.2d 964 (decided under former law).
Statute does not require such causal connection between industrial accident suffered by employee in 1960 and surgery performed on employee in 1963, but required that the medical and surgical attention be reasonably necessary not exceeding former maximum five-year period. Mirabal v. Robert E. McKee, Gen. Contractor, Inc., 1966-NMSC-259, 77 N.M. 213, 421 P.2d 127.
Award of medical expenses is properly made despite absence of finding of disability. DiMatteo v. County of Dona Ana, 1985-NMCA-099, 104 N.M. 599, 725 P.2d 575.
"Furnish" requires more than a passive willingness to respond to a demand. Garcia v. Genuine Parts Co., 1977-NMCA-007, 90 N.M. 124, 560 P.2d 545, cert. denied, 90 N.M. 254, 561 P.2d 1347; Trujillo v. Beaty Elec. Co., 1978-NMCA-021, 91 N.M. 533, 577 P.2d 431.
Employer not precluded from investigation to avoid liability. — Employer who failed to point to any action taken by them by way of inquiry into the necessity of surgery performed on employee could not argue that they were precluded from making an adequate investigation and avoid liability. Mirabal v. Robert E. McKee, Gen. Contractor, Inc., 1966-NMSC-259, 77 N.M. 213, 421 P.2d 127.
Medical testimony as basis for conclusion that disability result of accident. — Despite conflicts between the experts, the testimony of claimant's doctor revealed a sufficient basis for the conclusion that claimant's disability resulted from the accident, and that surgery was necessary, where he testified that he received from the claimant a history of the accident and a history of pain since the accident, that the conservative therapy employed by other physicians for over one year had not improved the claimant's condition, that in surgery abnormal intervertebral disc tissue was removed from the claimant, and that after surgery the claimant's prognosis had improved considerably. Provencio v. N.J. Zinc Co., 1974-NMCA-048, 86 N.M. 538, 525 P.2d 898, cert. denied, 86 N.M. 528, 525 P.2d 888.
Adequate provision where workman (worker) both employer and employee. — Where the workman (worker) was both employer and employee, and after sustaining an injury during the course of his employment, was admitted to the hospital for surgery and other medical treatment, giving notice to his insurer which then undertook its obligation to pay medical expenses as well as compensation, it was held that under these circumstances the employer did make provisions for and furnish hospital and medical facilities to the employee within the meaning of the section, since the employer, through its insurance company, paid the employee's medical bills, which was all that was necessary under the circumstances. Security Ins. Co. v. Chapman, 1975-NMSC-052, 88 N.M. 292, 540 P.2d 222.
Payments by insurer to employee presumed for original injury where there was no court determination as to the compensation award or as to whether the compensation paid by the insurer was for the original injury or for an alleged aggravation caused by an alleged improper blood transfusion, and the employer's insurer paid the employee benefits which were less than a total permanent award (paying him for a period and then discontinuing payments) altogether, without a release having been obtained, the employee neither giving an election in writing as required by this section nor filing suit against the employer for additional workmen's (workers') compensation benefits for the alleged malpractice, but instead electing to sue the physicians, technicians and hospital; then under the facts, any payments made by the insurer to the employee must be presumed to be benefits for his original injury, and it was not entitled to reimbursement from the employee where he settled with the hospital and doctors. Security Ins. Co. v. Chapman, 1975-NMSC-052, 88 N.M. 292, 540 P.2d 222.
Employer not required to furnish care for tortious acts of doctor. — This section nowhere requires the employer to furnish either compensation or medical or hospital care for the employee as a result of the injuries he sustained by reason of subsequent tortious act of the doctors or the hospital. Security Ins. Co. v. Chapman, 1975-NMSC-052, 88 N.M. 292, 540 P.2d 222.
Applicability of uncontradicted medical testimony rule. — The uncontradicted medical testimony rule, which is a limited exception to the trial court's discretion to weigh expert testimony and discard such testimony where it is deemed unreliable in light of other evidence, does not apply to medical testimony elicited on the reasonableness and necessity of plaintiff's medical treatments, which was fully rebuttable. Graham v. Presbyterian Hosp. Ctr., 1986-NMCA-064, 104 N.M. 490, 723 P.2d 259.
Testimony of physician who is not qualified as a treating health care provider and who is not authorized to provide an independent medical examination pursuant to Section 52-1-51 NMSA 1978 is in admissible. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 90.
Increased mortgage debt. — This section does not require worker's increased mortgage debt to be paid as medical care. Jackson v. K & M Constr., 2004-NMCA-082, 136 N.M. 94, 94 P.3d 837, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.
Medical marijuana. — The Workers' Compensation Act authorizes reimbursement for medical marijuana. Vialpando v. Ben's Auto. Servs., 2014-NMCA-084, cert. denied, 2014-NMCERT-007.
Where worker sustained a low back injury that resulted in numerous surgical procedures and in severe chronic pain that was debilitating; worker's health care providers certified that medical marijuana was reasonable and necessary for worker's treatment; and worker qualified to participate in the medical cannabis program authorized by the Lynn and Erin Compassionate Use Act, 26-2B-1 NMSA 1978 et seq., the Workers' Compensation Act required the employer and the insurer to reimburse worker for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act. Vialpando v. Ben's Auto. Servs., 2014-NMCA-084, cert. denied, 2014-NMCERT-007.
Reasonable and necessary health care. — The Workers' Compensation Act requires an employer, after an injury to a worker, to provide the worker reasonable and necessary health care services from a health care provider; conversely, an employer need not provide a worker with health care that is not reasonable and necessary. Maez v. Riley Industrial, 2015-NMCA-049.
When medical marijuana is reasonable and necessary. — Where worker's doctor certified, pursuant to the Lynn and Erin Compassionate Use Act, 26-2B-1 NMSA 1978 et seq., that worker has a debilitating medical condition and that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for worker, and that other medical therapies have failed to relieve worker of his symptoms, the fact that the health care provider adopted a treatment plan based on medical marijuana supports a conclusion that he believed medical marijuana was a reasonable treatment for worker, and the fact that worker's doctor treated worker with traditional pain management, and that such treatment failed, clearly established that medical marijuana was necessary for worker's treatment because it would not be possible to carry out the treatment plan without medical marijuana, and lastly the certification required under the Lynn and Erin Compassionate Use Act by a person licensed in New Mexico to prescribe and administer controlled substances is the functional equivalent of a prescription; evidence in the record as a whole does not support the worker's compensation judge's conclusion that medical marijuana was not reasonable and necessary medical care. Maez v. Riley Industrial, 2015-NMCA-049.
II. SELECTION OF PROVIDER.
Proof that second selection provider's care is unreasonable is required for change provider. — Where employer made the initial selection of a health care provider; worker made the second selection; employer did not object to the second selection; when the second provider died, employer did not object to worker's choice of a replacement provider; a year later, worker selected another or fourth provider and employer objected; worker filed a formal request with the workers' compensation judge to allow a change of provider; and at the hearing on the request, worker did not present any testimony or documentary evidence to show that the replacement provider's care was unreasonable or request an evidentiary hearing, the workers' compensation judge erred by allowing worker to change providers. Chavez v. City of Albuquerque, 2010-NMCA-022, 147 N.M. 741, 228 P.3d 525.
The uninsured employer's fund does not have the authority to act as either an employer or a worker with respect to the selection of a health care provider and does not have authority to select or change a health care provider. Johnson v. Hoyt & Son Tree Service, 2007-NMCA-072, 141 N.M. 849, 161 P.3d 894.
Worker may select physician. — The statute now allows a choice under the procedure outlined, but the worker must nevertheless establish that the services were "reasonable and necessary" in order to hold the employer to be financially responsible for the payment of such services. Vargas v. City of Albuquerque, 1993-NMCA-136, 116 N.M. 664, 866 P.2d 392.
Obligation to pay costs of doctor of employee's choice. — Where the workman (worker) declined a direct offer of medical services of a doctor of the employer's choice and sought treatment on his own, the employer is under no obligation to pay the workman's (worker's) doctor. Tafoya v. S & S Plumbing Co., 1981-NMCA-150, 97 N.M. 249, 638 P.2d 1094, cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982) (decided under former law).
Employee's recovery for medical services independently incurred limited. — An injured employee may not recover for medical services independently incurred by him unless the employer has failed to provide such services. Cardenas v. United Nuclear Homestake Partners, 1981-NMCA-117, 97 N.M. 46, 636 P.2d 317 (decided under former law).
This state recognizes the existence of certain exceptions to the general rule limiting an employee's right to seek independent medical treatment at the employer's expense where the employer has indicated a willingness to furnish such treatment; these exceptions include situations where the employer, although passively expressing a willingness to furnish medical treatment, fails to do so in fact, where the employer has not actually refused medical services but has failed to make arrangements in advance and in cases where the employer, although indicating a willingness to furnish medical and surgical aid, has failed to make suitable arrangements for such care in cases of emergency. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323 (decided under former law).
Employee must give employer opportunity to furnish services. — An employee injured in a compensable job related accident may not ordinarily incur medical expenses for which an employer is to be held responsible under this section without first giving the employer a reasonable opportunity to furnish such services. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323; Eldridge v. Aztec Well Servicing Co., 1987-NMCA-042, 105 N.M. 660, 735 P.2d 1166, cert. denied, 105 N.M. 644, 735 P.2d 1150.
Changing worker's health care provider. — This section establishes two methods for changing worker's health care provider. Under both, the initial selection is made by either the employer or the worker. The selection is valid for 60 days after the date of the worker's injury. After the 60-day period expires, the party that did not make the initial selection can notify the other party of his choice of a health care provider. City of Albuquerque v. Sanchez, 1992-NMCA-038, 113 N.M. 721, 832 P.2d 412.
If an employer makes the initial selection, at the end of the 60-day period the worker can select a health care provider of his choice. Thus, a worker has unfettered discretion to choose his or her own physician at that time without considering the reasonableness of the existing care. City of Albuquerque v. Sanchez, 1992-NMCA-038, 113 N.M. 721, 832 P.2d 412.
Both the worker and the employer have input into the selection of worker's health care provider, and either can object to the selection made by the other and obtain review of the selection. City of Albuquerque v. Sanchez, 1992-NMCA-038, 113 N.M. 721, 832 P.2d 412.
Subsection C does not provide either party with an unlimited right to change employee's health care provider; after one change has been made, subsequent changes can only be made upon a showing by the party seeking to make the change that the care being offered by the health care provider is unreasonable. Chavez v. Intel Corp., 1998-NMCA-175, 126 N.M. 335, 968 P.2d 1198.
Worker changing health care provider. — Where employer was aware that worker was dissatisfied with the treatment of worker's first doctor and employer took worker to another doctor who referred worker to worker's second doctor, the second doctor was an authorized health care provider, even though worker did not give employer written notice of worker's change of doctors. Wagner v. AGW Consultants, 2005-NMSC-016, 137 N.M. 734, 114 P.3d 1050.
Section allows each party to select health care provider. — This section must be read to allow the employer and the worker each to make a selection of a health care provider at some point in a case. Grine v. Peabody Nat. Res., 2005-NMCA-075, 137 N.M. 649, 114 P.3d 329, rev'd on other grounds, 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190.
Employer has right in first instance to select physician or surgeon to care for injured employees, and the injured employee may not recover for medical services incurred by him unless the employer has failed to provide such services. Valdez v. McKee, 1966-NMSC-102, 76 N.M. 340, 414 P.2d 852.
Question of right to choose doctor supplements section. — Section 52-4-1C NMSA 1978, insofar as it addresses the question of a worker's right to choose his or her own doctor, supplements, rather than modifies, this section. Bowles v. Los Lunas Schs., 1989-NMCA-081, 109 N.M. 100, 781 P.2d 1178 (decided under form law).
Authority to select health care provider. — An employer has the right to select a treating health care provider for a worker even when the employer denies the worker's claim for benefits. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190.
Selection of health care provider. — If an employer has received proper notice of a worker's accident and fails to communicate its health care provider selection to the worker within a reasonable period of time, then the health care provider selected by the worker is the employer's initial health care provider. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 90.
Presumption that employer selected the initial health care provider. — Where worker was taken to a rehabilitation hospital after receiving emergency treatment; employer had notice of worker's accident and authorized emergency treatment; neither worker nor employer selected the rehabilitation hospital as a health care provider; employer did not communicate its choice of health care provider until, after eight weeks of treatment at the rehabilitation hospital, worker decided to change health care provider; and a Workers' Compensation Administration regulation provided that if the employer fails to communicate its decision as to which party will choose the initial health care provider, the employer is presumed to have selected the initial health care provider; the rehabilitation hospital was the initial health care provider and employer's evidence that employer had not selected the rehabilitation hospital as a health care provider did not rebut the presumption of the regulation that employer had selected the rehabilitation hospital. Howell v. Marto Electric, 2006-NMCA-154, 140 N.M. 737, 148 P.3d 823.
Initial selection of health care provider must be made within a reasonable amount of time. — Where, following worker's work-related accident, employer's third-party administrator sent a letter to worker stating that employer had decided to allow worker to choose the initial health care provider (HCP), the notice was valid because an employer may communicate the decision to select the initial HCP or to permit the worker the selection by any method reasonably calculated to notify workers, and a letter from a third-party administrator communicating the employer's decision falls within this criterion, but employer's delay of almost one month before providing notice was not a reasonable amount of time in which to give notice. Employer, therefore, failed to comply with the notice requirements and is deemed to have made the initial selection of HCP. Silva v. Denco Sales Co., 2020-NMCA-012.
Order denying objection to change not appealable. — A judge's order denying a request, or an objection, to change health care provider is not final and appealable when a claim for benefits is pending before the workers compensation administration. Kellewood v. BHP Minerals Int'l, 1993-NMCA-148, 116 N.M. 678, 866 P.2d 406.
A judge's order denying a request, or an objection, to change health care provider is not final and appealable when a claim for benefits is pending before the workers compensation administration. Murphy v. Strata Prod. Co., 2006-NMCA-008, 138 N.M. 809, 126 P.3d 1173.
III. MEDICAL BENEFITS.
Duty to provide attendant care. — The duty to provide nursing services also includes necessary attendant care. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
Evaluating need and cost of home health care. — In evaluating the need and cost of providing home health care, the fact finder must make an initial determination concerning the level and extent of care required by the worker. Home medical care may include a wide spectrum of services, including those of a registered nurse, licensed practical nurse, nurse's aide or assistant, and subprofessional nursing care, such as home health care aide or attendant. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
Four criteria for determining whether an injured worker is entitled to workers' compensation benefits for home health care are: (1) the employer knows of the employee's need for medical attention at home as a result of the industrial accident; (2) the medical attention is performed under the direction and control of a physician, that is, a physician must state home nursing care is necessary as the result of the accident and must describe with a reasonable degree of particularity the nature and extent of duties to be performed by the spouse; (3) the care rendered by the spouse must be of the type usually rendered only by trained attendants and beyond the scope of normal household duties; and (4) there is a means to determine with proper certainty the reasonable value of the services performed by the spouse. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
Services must be reasonable and necessary. — The purpose of the 1991 amendment was to allow the worker some input into the choice of a health care provider, not to expand the employer's obligation to pay. Regardless of who selects the health care provider, the employer's obligation is limited by Subsection A to paying for "reasonable and necessary" health care services. Vargas v. City of Albuquerque, 1993-NMCA-136, 116 N.M. 664, 866 P.2d 392.
Treatment must be reasonable, adequate, and timely. — An employer is required under this section to provide appropriate "reasonable" and "adequate" medical treatment in a timely manner. Eldridge v. Aztec Well Servicing Co., 1987-NMCA-042, 105 N.M. 660, 735 P.2d 1166, cert. denied, 105 N.M. 644, 735 P.2d 1150.
Treatment to be reasonably necessary. — Medical treatment for which payment is sought in a compensation case must be shown to be reasonably necessary. DiMatteo v. County of Dona Ana, 1985-NMCA-099, 104 N.M. 599, 725 P.2d 575.
Bill for medical services rendered is prima facie proof of reasonableness. DiMatteo v. County of Dona Ana, 1985-NMCA-099, 104 N.M. 599, 725 P.2d 575.
Treatment held to be unnecessary. — Findings of a hearing officer that the installation of a hot tub in the claimant's home following his back injury was unreasonable and medically unnecessary were supported by substantial evidence. Davis v. Los Alamos Nat'l Lab., 1989-NMCA-023, 108 N.M. 587, 775 P.2d 1304, cert. denied, 108 N.M. 433, 773 P.2d 1240.
The determination of whether medical marijuana use was reasonable and necessary medical care. — The Workers' Compensation Act (WCA), 52-1-1 NMSA 1978 et seq., and the Lynn and Erin Compassionate Use Act, 26-2B-1 NMSA 1978 et seq., are two separate statutory schemes. The determinations of whether a worker is certified to participate in the New Mexico department of health medical cannabis program and whether medical marijuana use is reasonable and necessary medical care under the WCA are not dependent on each other; the two determinations are made separately, at different times, and by different administrative authorities. Lewis v. American Gen. Media, 2015-NMCA-090.
Where employer claimed that the evidence offered by worker's authorized health care provider was insufficient to support a finding of reasonable and necessary care, and that the workers' compensation judge (WCJ) improperly considered the certification of a second doctor, who had provided a certification for worker's use of medical marijuana under the Lynn and Erin Compassionate Use Act, 26-2B-1 NMSA 1978 et seq., but was not qualified to present testimony under the Workers' Compensation Act (WCA) because he was neither workers' authorized health care provider nor a health care provider authorized to perform an independent medical examination, the district court did not err in finding that the use of medical marijuana by worker constituted reasonable and necessary medical care that required reimbursement, because, although the administrative regulations promulgated by the department of health pursuant to the Compassionate Use Act may require more than one certification for the condition of severe chronic pain, nothing in the WCA requires evidence from more than one health care provider in order to establish the reasonableness and necessity of medical treatment. Lewis v. American Gen. Media, 2015-NMCA-090.
Sufficient evidence of reasonable and necessary health care services. — Where worker's authorized health care providers certified that worker suffered from severe chronic pain and that other treatment, including narcotic medications, had not worked, and that the benefits of medical marijuana would outweigh the risk of hyper doses of narcotic medications, there was sufficient evidence to support the workers' compensation judge's determinations that the use of medical marijuana by worker constituted reasonable and necessary medical care that required reimbursement. Lewis v. American Gen. Media, 2015-NMCA-090.
Section grants future medical services as matter of right, if related to the compensable injury. Chavira v. Gaylord Broad. Co., 1980-NMCA-154, 95 N.M. 267, 620 P.2d 1292, cert. denied, 95 N.M. 299, 621 P.2d 516 , overruled on other grounds by Chapman v. Jesco, Inc., 1982-NMCA-144, 98 N.M. 707, 652 P.2d 257.
To the extent that Hermandez v. Mead Foods, Inc., 1986-NMCA-020, 104 N.M. 67, 716 P.2d 645 implies that a court can decide now that a claimant will never suffer a relapse of a compensable injury and never be entitled to future medical benefits, it is incorrect and not to be followed. Sierra Blanca Sales Co. v. Newco Indus., Inc., 1975-NMCA-118, 88 N.M. 472, 542 P.2d 52.
Where there was an accidental injury arising out of and in the course of employment, where there is a claim for current and past medical benefits together with a claim for unspecified and unspecifiable future medical benefits, and where the court finds that the defendants are not liable for the past and current medical expenses, either because plaintiff has fully recovered or because plaintiff is faking pain or for whatever reason, the court may dismiss the main part of the claim with prejudice, but it cannot dismiss the claim for future medical benefits with prejudice. Graham v. Presbyterian Hosp. Ctr., 1986-NMCA-064, 104 N.M. 490, 723 P.2d 259.
Because the trial court cannot practically determine the worker's future medical needs at the time of entry of a judgment finding disability, this section authorizes entry of a judgment directing the payment of a worker's reasonable and necessary future medical expenses and invests the court with continuing jurisdiction to enforce such orders. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
No authority for present award of future medical expenses. — The Workmen's (Workers') Compensation Act contains neither authorization nor suggestion for a present award of future medical expenses and temporary disability benefits where the claimant refuses the present administration of such treatment and it is only speculative whether the treatment will ever be undertaken in the future. Dudley v. Ferguson Trucking Co., 1956-NMSC-052, 61 N.M. 166, 297 P.2d 313 (decided under former law).
Nothing in this section, or in any other section of the Workmen's (Workers') Compensation Act, suggests that the injured employee may presently recover judgment against the employer, or the insurer, for medical expenses which may at some time in the future prove necessary as a result of the injury. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657; Gearhart v. Eidson Metal Prods., 1979-NMCA-019, 92 N.M. 763, 595 P.2d 401.
Medical benefits not limited by other section. — It was not the intention of the legislature to make the medical benefits provided under this section subject to the limitations of 52-1-30 NMSA 1978. Valdez v. McKee, 1966-NMSC-102, 76 N.M. 340, 414 P.2d 852.
Burden is on claimant to show reasonableness of services of a doctor, however proof of a bill from a doctor for services rendered is considered sufficient as prima facie proof of reasonableness. Scott v. Transwestern Tankers, Inc., 1963-NMSC-205, 73 N.M. 219, 387 P.2d 327.
Burden is on claimant to show reasonableness of spousal home medical and attendant care. — In order to recover an award for spousal home medical and attendant care, plaintiff has the burden of persuasion that the medical expenses were reasonably necessary and that the spouse has the requisite skill or training to provide such services. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
Expert medical testimony required to establish need. — Determination of whether plaintiff is in need of home medical care or attendant care, as in the case of other medical expenses, must be established by expert medical testimony. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
In fixing the amount of compensation payable for home nursing services rendered by a spouse, it is improper to award an hourly amount for nursing services equivalent to that normally received by a registered nurse or LPN, unless there is expert medical testimony concerning the necessity for providing that specific type of care, and that the training and experience of the person performing such services is equivalent to that which would be provided by a registered nurse, LPN, or nurse's aide. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
Claimant was not required to apply to district court prior to receiving additional medical and surgical services not exceeding former $1,500 limit. Mirabal v. Robert E. McKee, Gen. Contractor, Inc., 1966-NMSC-259, 77 N.M. 213, 421 P.2d 127.
Plaintiff was not required to utilize his own private insurance to pay for injury which arose out of and in the course of his employment, since defendants could not shift the burden when by law they were the responsible parties; and by giving only a qualified authorization for surgery, limited in dollar amount, defendants were in effect denying plaintiff the reasonably necessary medical and surgical attention to which he had a statutory right. Bennett v. Lane Plumbing Co., 1976-NMCA-122, 89 N.M. 790, 558 P.2d 59.
No reimbursement for travel expenses. — The trial court concluded that plaintiff is not entitled to reimbursement for travel expenses in making trips from Duncan, Arizona, where he moved with his parents after his injury and his release from the hospital, to Silver City, New Mexico and return, and from Duncan to Tucson and return. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657.
Reasonable travel expenses necessarily incurred in receiving medical treatment come within the language of Subsection A. Gonzales v. Bates Lumber Co., 1981-NMCA-052, 96 N.M. 422, 631 P.2d 328.
Nursing care provided by spouse. — Wife was properly compensated for 24-hour, semi-skilled nursing care she provided to her husband, based on an hourly rate. Shadbolt v. Schneider, Inc., 1985-NMCA-086, 103 N.M. 544, 710 P.2d 738, cert. quashed, 104 N.M. 632, 725 P.2d 832 (1986).
Claimant must show expenditures were justified from medical standpoint, were of reasonable amount, and that some request or demand, however informal, was made upon the employer or insurer to provide the articles or services. Dudley v. Ferguson Trucking Co., 1956-NMSC-052, 61 N.M. 166, 297 P.2d 313 (decided under former law).
Once employer provides for medical services and offers those services to workman (worker), the employer is not liable for services other than those offered absent a demand or request for the additional services. But where the employer terminates the services previously offered, the employer at that point has failed to provide such services, and thereafter, no request or demand for further services is necessary. Provencio v. N.J. Zinc Co., 1974-NMCA-048, 86 N.M. 538, 525 P.2d 898, cert. denied, 86 N.M. 528, 525 P.2d 888.
Limitation of adequate services. — Once the employer provides for medical services, which are reasonably necessary, and offers those services to the workman (worker), the employer is not liable for services other than those offered. Salcido v. Transamerica Ins. Group, Inc., 1983-NMCA-097, 102 N.M. 344, 695 P.2d 494, rev'd on other grounds, 1985-NMSC-002, 102 N.M. 217, 693 P.2d 583.
Failure to provide adequate services. — When company doctors ignore diagnostic information and fail to advise either the patient or the patient's employer of a condition requiring attention, the employee is not afforded adequate medical services. Sedillo v. Levi-Strauss Corp., 1982-NMCA-069, 98 N.M. 52, 644 P.2d 1041, cert. denied, 98 N.M. 336, 648 P.2d 794.
Plaintiff is entitled to reasonable future medical expenses, beyond the date of the last termination of compensation payments. Ideal Basic Indus., Inc. v. Evans, 1978-NMSC-020, 91 N.M. 460, 575 P.2d 1345.
Obligation for payment for medical treatment is to workman (worker), not to physician. — Although the Workmen's (Workers') Compensation Act imposes the obligation for payment of reasonable medical treatment to an injured workman (worker) on the employer-insurer, that obligation is to the workman (worker), not to the treating physician. Speer v. Cimosz, 1982-NMCA-029, 97 N.M. 602, 642 P.2d 205, cert. denied sub nom. N.H. Ins. Group v. Speer, 98 N.M. 50, 644 P.2d 1039.
Trial court cannot restrict or terminate substantive right to payment for continuing medical and surgical attention for an injury. Gearhart v. Eidson Metal Prods., 1979-NMCA-019, 92 N.M. 763, 595 P.2d 401.
Supplemental medical bills. — If a supplemental medical bill reflects therapy to the same parts of the body as a previous bill admitted into evidence, then, absent a showing of a new injury or complication unrelated to the accidental injury, the trial court should accept the supplemental bill as prima facie proof of a reasonable and necessary medical expense. Pritchard v. Halliburton Servs., 1986-NMCA-018, 104 N.M. 102, 717 P.2d 78, cert. denied, 103 N.M. 798, 715 P.2d 71.
Where plaintiff's testimony on cross-examination cast doubt on her credibility, including her credibility with her doctors, substantial evidence supported the finding that the treatments and procedures in question were not necessary and, hence, not compensable. Graham v. Presbyterian Hosp. Ctr., 1986-NMCA-064, 104 N.M. 490, 723 P.2d 259.
Finding that defendants made provision for adequate treatment which was supported by substantial evidence would not be disturbed on appeal. Gregory v. Eastern N.M. Univ., 1970-NMCA-018, 81 N.M. 236, 465 P.2d 515.
Employer's failure to provide services. — In the event of the employer's failure to provide services in accordance with the statutory standard, the worker may seek the services of another health provider and require the employer to pay for such services, provided such treatment is related to the injury and is reasonable and necessary. The question of whether the employer has provided services in accordance with that standard is ordinarily a question of fact and depends on the circumstances of the particular case. Bowles v. Los Lunas Schs., 1989-NMCA-081, 109 N.M. 100, 781 P.2d 1178, cert denied, 109 N.M. 131, 782 P.2d 384.
Motion seeking modification of prior award. — A motion seeking to retroactively modify a prior award of medical benefits must also satisfy the requirements of Rule 1-060 NMRA. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993.
IV. ARTIFICIAL MEMBERS.
Obligation to furnish artificial member. — Subsections A and B involve only the employer's obligation to furnish medical, surgical and hospital services. The language "the employer shall furnish all reasonable surgical, medical . . . and hospital services and medicine" is not broad enough in scope to include the obligation to furnish an artificial member. The term "services" is defined as any result of useful labor which does not produce a tangible commodity. Cromer v. J.W. Jones Constr. Co., 1968-NMCA-027, 79 N.M. 179, 441 P.2d 219, overruled on other grounds by Schiller v. Southwest Air Rangers, Inc., 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327.
Cost of furnishing artificial members by employer is not an item includable within the limitation expressed in Subsection A. This interpretation accords with the view often expressed by the New Mexico supreme court, namely, that the workmen's (workers') compensation statute is to be liberally construed in favor of the employee. Cromer v. J.W. Jones Constr. Co., 1968-NMCA-027, 79 N.M. 179, 441 P.2d 219, overruled on other grounds by Schiller v. Southwest Air Rangers, Inc., 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327.
Cost of artificial member not limited. — It would appear proper that Subsection C is an exception to Subsections A and B and so treating Subsection C, the cost of obtaining an artificial member would not be includable in the limitation on medical expenditures in Subsection A. Cromer v. J.W. Jones Constr. Co., 1968-NMCA-027, 79 N.M. 179, 441 P.2d 219, overruled on other grounds by Schiller v. Southwest Air Rangers, Inc., 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327.
The term "artificial member" does not include the entire cost of a wheelchair-accessible van. Fogleman v. Duke City Automotive Servs., 2000-NMCA-039, 128 N.M. 840, 999 P.2d 1072, cert. denied, 129 N.M. 207, 4 P.3d 35.
Training in use of artificial arm is to be considered medical service and consequently would fall within Subsections A and B, subject to limitations as expenditure as set forth therein. Cromer v. J.W. Jones Constr. Co., 1968-NMCA-027, 79 N.M. 179, 441 P.2d 219, overruled on other grounds by Schiller v. Southwest Air Rangers, Inc., 1975-NMSC-018, 87 N.M. 476, 535 P.2d 1327.
Chiropractic treatment required. — An employer who is subject to the Workmen's (Workers') Compensation Act (Chapter 52, Article 1 NMSA 1978) is legally obligated under this section to provide chiropractic treatment to injured employees. 1978 Op. Att'y Gen. No. 78-06.
Limitation of adequate services. — Once services are provided in an adequate form by the employer, he is under no further obligation. 1978 Op. Att'y Gen. No. 78-06.
Subsections A and B to be construed together. — Subsections A and B deal with the same subject matter; thus, they are in pari materia and must be construed together so as to give effect to the provisions of both. In addition, these two subsections must be considered together and read as a whole, with all provisions considered in relation to each other, in order to determine the legislative intent. 1978 Op. Att'y Gen. No. 78-06 (rendered under former law).
Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442 (1967).
For survey, "Workmen's Compensation," see 6 N.M. L. Rev. 413 (1976).
For annual survey of New Mexico law relating to workmen's compensation, see 13 N.M.L. Rev. 495 (1983).
For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 404, 435 to 445.
Value of home services provided by victim's relative, 65 A.L.R.4th 142.
Workers' compensation: recovery for home service provided by spouse, 67 A.L.R.4th 765.
Workers' compensation: reasonableness of employee's refusal of medical services tendered by employer, 72 A.L.R.4th 905.
Workers' compensation as covering cost of penile or similar implants related to sexual or reproductive activity, 89 A.L.R.4th 1057.
Employee's reimbursement for travel expenses incurred in obtaining treatment of work-related injury, 36 A.L.R.5th 225.
99 C.J.S. Workmen's Compensation §§ 266 to 277.