(concurring in part, dissenting in part).
(29) I concur in the remand to the Workers’ Compensation Judge (WCJ) for further proceedings. Additional findings are necessary to determine the benefits to which Worker is entitled. I dissent from the majority opinion, however, to the extent that it appears to expand improperly our decision in Leo v. Cornucopia Restaurant, 118 N.M. 354, 881 P.2d 714 (Ct.App.1994).
(30) Although I agree with much of the majority opinion, I cannot agree that Worker is necessarily entitled to benefits for all disability caused by her work-related accident and her myeloma. According to the WCJ’s findings, the progression of her myeloma and the treatment of the disease were not affected by the work-related injury. As I understand the principles of New Mexico workers’ compensation law, Worker is therefore not entitled to disability benefits for those disabling effects of Worker’s myeloma that arose after Worker’s accident.
(31) The majority opinion states the general rule in New Mexico that the employer takes the worker as it finds the worker. For example, if the worker has only one eye and loses that eye as the result of a work-related accident, the employer is responsible for the disability resulting from worker’s total blindness. New Mexico has not joined those states that apportion disability so that the employer is not responsible for the post-accident disability to the extent that the disability can be attributed to a pre-accident disabling condition. See 2 Arthur Larson, The Law of Workmen’s Compensation § 59.21 (1994) (New Mexico has, however, permitted employers to obtain some relief through a subsequent injury fund, see NMSA 1978, § 52-2-1, -4, -9, -11, -12, -14 (Repl. Pamp.1991), although the statutory authorization for that fund expires in 1999, see 1996 N.M. Laws (1st S.S.) ch. 10.) Thus, in Reynolds v. Ruidoso Racing Ass’n, 69 N.M. 248, 365 P.2d 671 (1961), the worker was entitled to benefits for total disability resulting from the combination of a work-related back injury and preexisting, asymptomatic osteoporosis. In Leo we held that the worker was entitled to disability benefits based on consideration of not only the worker’s work-related back injury but also the worker’s heart and lung conditions existing at the time of the injury.
(32) Nonetheless, to say that the employer takes the worker as it finds the worker, is not to say that the employer takes the worker as the worker later becomes, at least insofar as the work-related accident bears no responsibility for the post-accident change in the worker’s condition. In Aragon v. State Corrections Department, 113 N.M. 176, 824 P.2d 316 (Ct.App.1991), the worker suffered a work-related back injury and then aggravated the injury while attempting to repair his personal truck at home. Id. at 177, 824 P.2d at 317. We held that the worker could recover benefits for his disability after the second injury only if the disability “was a direct and natural result of the [earlier] injury — that is, a disability that arose from a combination of his [earlier] injury and the normal physical strains of daily life.” Id. at 181, 824 P.2d at 321. See NMSA 1978, § 52-1-28 (Repl.Pamp.1991) (disability is compensable only if “a natural and direct result of the accident”). We pointed out that “the worker is not ... provided an insurance policy of indefinite duration to cover every non-work-related accident that magnifies the original injury.” Id. at 179, 824 P.2d at 319.
(33) Similarly, in Clavery v. Zia Co., 104 N.M. 321, 720 P.2d 1262 (Ct.App.1986), the worker was diagnosed with breast cancer a year after suffering a compensable back injury. Noting that Section 52-1-28 requires that the disability be “a natural and direct result of the accident,” the Court reversed an award that considered the breast cancer in determining the extent of worker’s disability. Id. at 322, 720 P.2d at 1263. We wrote, “The statutory construction on which the [lower court’s award] depends would eliminate the causation requirement.” Id. at 323, 720 P.2d at 1264.
(34) Most closely in point to the present case is Holliday v. Talk of the Town, 98 N.M. 354, 648 P.2d 812 (Ct.App.1982). The worker had suffered a compensable hand injury. At the time of the injury he had emphysema. The emphysema got worse, until he was unable to work. He claimed entitlement to total disability benefits on the ground that his emphysema, combined with his hand injury, rendered him totally disabled. We rejected the claim that worker’s emphysema provided a basis for increasing compensation benefits. Id. at 356, 648 P.2d at 814.
(35) I now turn to the law in other states. To be sure, the New Mexico Workers’ Compensation Act has a number of unique provisions, which makes reliance on out-of-state cases unwise on many issues. But because the language regarding causation is fairly uniform among workers’ compensation statutes, we have typically looked to the law elsewhere for guidance on novel issues with respect to causation. Reynolds, our leading case on the question, sets a clear precedent in its approach. Rather than subjecting the language of the New Mexico statute to minute scrutiny, the opinion surveys the cases from around the country. See also Aragon (relying on non-New Mexico authority to resolve novel causation question).
(36) With respect to the narrow issue that divides the majority and me, case law in other jurisdictions is scant, but it appears to support my interpretation of New Mexico law. In Russell v. Industrial Commission, 23 Ariz.App. 398, 533 P.2d 706, 710 (1975), the court wrote:
The employee did have some pre-existing conditions not affected by the industrial injury that, because of natural progression, became disabling subsequent to the injury. While he is entitled to collect compensation for all disabilities that were caused by the industrial injury, he is not entitled to collect workman’s compensation for any disability that developed through the natural progression of the disease, subsequent to the industrial injury.
Although Arizona has a statute requiring apportionment of disability when the worker was already suffering a disability at the time of the work-related accident, that statute was not applicable in the ease. The court relied simply on the statutory requirement of causation. See id. 533 P.2d at 708-09.
(37) Adopting a similar view, Searles v. Johnston Cement, 101 Or.App. 589, 792 P.2d 449 (1990), held that the worker’s disability should be calculated without consideration of his colon cancer, which preexisted the work-related accident but was in remission at the time of the accident. Also relevant is Giesbrecht v. Board of Review, 828 P.2d 544 (Utah.Ct.App.1992). In that ease the worker broke his leg on the job. Treatment of the fracture revealed a tumor in the leg, which then had to be amputated. The court denied expenses and disability benefits related to the cancer. Although the cancer likely contributed to the fracture, there was no causal connection in the other direction. Id. at 547.
(38) Thus, the general rule is that a worker is not entitled to compensation benefits for disability arising from the progression or worsening of a pre-accident condition. The worker is entitled to benefits for disability arising from the combination of (1) the work-related injury and (2) the worker’s preexisting condition at the time of the accident. But if the disability increases because of a post-accident worsening of the preexisting condition, that increase is not a natural and direct result of the accident and is therefore not compensable. This rule, however, is subject to an obvious exception. If the work-related accident aggravates the preexisting condition by changing the course of the ailment or its treatment, the disability caused by the aggravated condition is fully compensable, without any apportionment based on the natural course of the condition. See Reynolds, 69 N.M. at 255, 365 P.2d at 676. After all, in that situation the worsening is caused, at least in part, by the accident. On the other hand, if such aggravation of the condition is merely transient, there is no basis for considering it in determining permanent disability benefits. See Arellano v. Industrial Comm’n, 25 Ariz.App. 598, 545 P.2d 446, 452 (1976); Hash v. Montana Silversmith, 256 Mont. 252, 846 P.2d 981, 983-84 (1993).
(39) How does this law relate to the present ease? First, following Reynolds, even though Worker’s myeloma apparently made her more susceptible to back injury, she is entitled to benefits for disability arising out of the injury to her spine from the work-related accident regardless of whether the myeloma made the injury more severe than it would otherwise have been or caused the injury to heal more slowly or less completely than it otherwise would have. (Such benefits also do not depend on whether the accident aggravated the myeloma.) There was no reason for the WCJ to consider what the course of the spinal injury would have been in the absence of Worker’s myeloma at the time of the accident.
(40) Second, following both Reynolds and Leo, in determining Worker’s entitlement to permanent-disability benefits the WCJ should consider the combination of Worker’s work-related back injury and her myeloma as it existed at the time of the accident.
(41) Thus, I share much common ground with the majority. Where I part company is with respect to the limitations on recovery for the myeloma. The uncontradicted record establishes, and the WCJ found, that after Worker reached maximum medical improvement the state of her myeloma was the same as it would have been if she had not suffered her work-related back injury. Therefore, any increase in Worker’s disability arising from the worsening of the myeloma after she suffered her back injury should not be considered in determining her permanent disability benefits.
(42) On this issue the present case is indistinguishable in any material respect from Holliday. There, the worker suffered from emphysema at the time of the work-related accident. The emphysema progressed until it rendered the worker incapable of working. We held that the worker was not entitled to benefits resulting from the disabling effects of the emphysema. I see no reason to distinguish Holliday on the ground that the emphysema in that case did not affect the worker’s hand injury, whereas here the Worker’s myeloma caused her back injury to be more severe than it otherwise would have been. The relevant question is whether the progression or treatment of Worker’s myeloma was a natural and direct result of the work-related accident. If it was not, our statute does not permit recovery for the increased disability. See § 52-l-28(B).
(43) Reynolds is not to the contrary. The worker’s total permanent disability in that case resulted from the combination of his back injury and his osteoporosis. Nothing in that opinion, however, suggests that worker would be entitled to compensation benefits for post-injury worsening of his osteoporosis. The causal relationship between a preexisting condition and a work-related accident can proceed in either of two directions: (1) the work-related accident may aggravate the preexisting condition or (2) the preexisting condition may cause the work-related injury to be more severe than it otherwise would have been. In the first situation the resulting condition itself is caused, at least in part, by the work-related accident, and compensation is appropriate. But in the second situation the condition has not been affected by the accident. There is no basis in our statute for awarding disability benefits arising from worsening of a preexisting condition when only the causal relationship in the second situation is involved. The worker’s compensable disability is only the disability caused by the combination of (1) the preexisting condition at the time of the work-related accident and (2) the work-related injury. No verbal gymnastics can make the progression of the condition the “natural and direct result” of the work-related accident.
(44)Also, the WCJ’s finding that Worker’s accident “aggravated the preexisting multiple myeloma” does not justify consideration of the progression of the myeloma in awarding permanent disability benefits. To begin with, the WCJ’s finding apparently refers only to the fact that Worker’s back injury increased her pain. There was no evidence that the accident changed the course or treatment of the myeloma. But even accepting the characterization of the increased pain as an aggravation, it was a temporary aggravation. Transient effects of a work-related accident on a preexisting condition during a worker’s temporary disability cannot make the natural progression of the condition a “natural and direct result” of the work-related accident. If the progression of the condition from the time of the accident to the time of maximum medical improvement is the same as it would have been if there had been no work-related injury, then any disability arising from the progression is not compensable. To be sure, if a work-related accident continues to aggravate a worker’s cancer, we do not apportion the cancer-caused disability between the disability that would have arisen in the absence of the work-related accident and the remaining aggravation of the cancer. But when the aggravation is only temporary and has no permanent effect on the course or treatment of the cancer, the requisite causal relationship disappears. See Arellano, 545 P.2d at 452; Hash, 846 P.2d at 988-84.
(45) Because Worker failed in her burden to establish the extent of her disability caused by the accident, the decision of the WCJ could be affirmed. But given the uncertain state of the law at the time of the hearing, the fairer way of proceeding is to remand. I therefore join in remand to the WCJ. I disagree with the instructions for remand, however, to the extent that they suggest that Worker is necessarily entitled to all benefits arising from disability caused by her myeloma. Only the state of her myeloma at the time of her accident (combined with' her back injury) should be considered; any disability resulting from post-accident worsening of the disease is not compensable. The WCJ may find it advisable to permit further proceedings concerning the opinions of the physicians who previously provided reports and depositions — the questions that were asked in prior proceedings did not focus on distinctions that may be critical in determining the benefits due Worker. Because of the uncertainties in the applicable law, I do not fault the attorneys in this regard. Nevertheless, the following passage from Gay v. Workers’ Compensation Appeals Board, 96 Cal.App.3d 555, 158 Cal.Rptr. 137, 141 (1979), bears repeating:
We do not comprehend how the parties can expect any physician to properly report in workers’ compensation matters unless he is advised of the controlling legal principles. Physicians are trained to discover the etiology of an illness. Finding the causes is important in preventive medicine and curing illness once developed. Legal apportionment is not identical to theories of medical causation. Physicians in workers’ compensation matters must accordingly be educated by the parties on the correct legal standards of apportionment.
(Citation omitted.)