NM Stat § 52-1-51 (2021)
2021 New Mexico Statutes|Chapter 52 - Workers' Compensation|Article 1 - Workers' Compensation|Section 52-1-51 - Physical examinations of worker; independent medical examination; unsanitary or injurious practices by worker; testimony of health care providers.

A. In the event of a dispute between the parties concerning the reasonableness or necessity of medical or surgical treatment, the date upon which maximum medical improvement was reached, the correct impairment rating for the worker, the cause of an injury or any other medical issue, if the parties cannot agree upon the use of a specific independent medical examiner, either party may petition a workers' compensation judge for permission to have the worker undergo an independent medical examination. If a workers' compensation judge believes that an independent medical examination will assist the judge with the proper determination of any issue in the case, including the cause of the injury, the workers' compensation judge may order an independent medical examination upon the judge's own motion. The independent medical examination shall be performed immediately, pursuant to procedures adopted by the director, by a health care provider other than the designated health care provider, unless the employer and the worker otherwise agree. B. In deciding who may conduct the independent medical examination, the workers' compensation judge shall not designate the health care provider initially chosen by the petitioner. The workers' compensation judge shall designate a health care provider on the approved list of persons authorized by the committee appointed by the advisory council on workers' compensation to create that list. The decision of the workers' compensation judge shall be final. The employer shall pay for any independent medical examination. C. Only a health care provider who has treated the worker pursuant to Section 52-1-49 NMSA 1978 or the health care provider providing the independent medical examination pursuant to this section may offer testimony at any workers' compensation hearing concerning the particular injury in question. D. If, pursuant to Subsection C of Section 52-1-49 NMSA 1978, either party selects a new health care provider, the other party shall be entitled to periodic examinations of the worker by the health care provider the other party previously selected. Examinations may not be required more frequently than at six-month intervals; except that upon application to the workers' compensation judge having jurisdiction of the claim and after reasonable cause therefor, examinations within six-month intervals may be ordered. In considering such applications, the workers' compensation judge shall exercise care to prevent harassment of the claimant. E. If an independent medical examination or an examination pursuant to Subsection D of this section is requested, the worker shall travel to the place at which the examination shall be conducted. Within thirty days after the examination, the worker shall be compensated by the employer for all necessary and reasonable expenses incidental to submitting to the examination, including the cost of travel, meals, lodging, loss of pay or other like direct expense, but the amount to be compensated for meals and lodging shall not exceed that allowed for nonsalaried public officers under the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978]. F. No attorney shall be present at any examination authorized under this section. G. Both the employer and the worker shall be given a copy of the report of the examination of the worker made by the independent health care provider pursuant to this section. H. If a worker fails or refuses to submit to examination in accordance with this section, the worker shall forfeit all workers' compensation benefits that would accrue or become due to the worker except for that failure or refusal to submit to examination during the period that the worker persists in such failure and refusal unless the worker is by reason of disability unable to appear for examination. I. If any worker persists in any unsanitary or injurious practice that tends to imperil, retard or impair the worker's recovery or increase the worker's disability or refuses to submit to such medical or surgical treatment as is reasonably essential to promote the worker's recovery, the workers' compensation judge may in the judge's discretion reduce or suspend the workers' compensation benefits. History: Laws 1929, ch. 113, § 19; C.S. 1929, § 156-119; 1941 Comp., § 57-920; Laws 1947, ch. 109, § 1; 1953 Comp., § 59-10-20; Laws 1986, ch. 22, § 17; 1987, ch. 235, § 23; 1989, ch. 263, § 30; 1990 (2nd S.S.), ch. 2, § 22; 2005, ch. 150, § 1; 2013, ch. 134, § 4. ANNOTATIONSThe 2013 amendment, effective July 1, 2013, allowed all parties to obtain a periodic examination of the worker from a health care provider of choice; and in Subsection D, in the first sentence, after "by the health care provider the", deleted "worker" and added "other party". The 2005 amendment, effective July 1, 2005, provided in Subsection A that in the event of a dispute concerning the reasonableness of necessity of treatment, the date upon which maximum medical improvement was reached, the correct impartment rating, the cause of an injury or any other medical issue if the parties cannot agree upon a medical examiner, the parties may petition a worker's compensation judge for permission to have the worker undergo an independent examination and provides that if a worker's compensation judge believes that an independent medical examination will assist the judge with the proper determination of any issue in the case, the judge may order the examination upon the judge's own motion; provided in Subsection D that if either party selects a new health care provider, the other party shall be entitled to periodic examinations of the worker by the health care provider he previously selected; and provided in Subsection E that if an independent medical examination or examination pursuant to Subsection D is requested, then the worker shall travel to the place of examination and that within thirty days, the worker shall be compensated by the employer. The 1990 (2nd S.S.) amendment, effective January 1, 1991, rewrote the section, including the catchline, to the extent that a detailed comparison would be impracticable. I. GENERAL CONSIDERATION.Jurisdiction to reopen award. — Under Workmen's (Workers') Compensation Act district court retains jurisdiction after expiration of 30-day period during which it generally retains jurisdiction over its judgments to reopen its award for disability and to suspend or reduce the amount awarded by reason of claimant's refusal to undergo proposed surgery to reduce the percentage of his disability. Fowler v. W.G. Constr. Co., 1947-NMSC-049, 51 N.M. 441, 188 P.2d 160 (decided under former law). Six-month review right is limited to employers under the unambiguous terms of Subsection D of this section. Flores v. J.B. Henderson Constr., 2003-NMCA-116, 134 N.M. 364, 76 P.3d 1121. Questions of law and fact. — While this section appears to be generally recognized and applied, there is of course some variation in its application. Where the evidence is undisputed on the issue, the question becomes one of law; where there is a conflict in the evidence, it is one of fact. Where a question of law is presented, the courts may make a final determination of it. Where disputed questions of fact are present and undecided, it is necessary to remand the case for further proceedings. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672 (decided under former law). Specific findings required. — Although worker's compensation judge has discretion to reduce or suspend benefits, the judge is required to make findings as to impairment and, if applicable, injurious practices by claimant, and failure to do so warrants a remand with instructions to make specific findings thereon. Chavarria v. Basin Moving & Storage, 1999-NMCA-032, 127 N.M. 67, 976 P.2d 1019. "Dispute concerning any medical issue". — The phrase "dispute concerning any medical issue," in Subsection A encompasses, inter alia, any disagreement between a worker's authorized health care providers as to the necessity for conducting a specific test, medical procedure, or course of treatment for the worker. Gutierrez v. J & B Mobile Homes, 1999-NMCA-007, 126 N.M. 494, 971 P.2d 1284 (decided under former law). No application to dispute between employer and its health care provider. — Disputes regarding medical issues that would allow for an independent medical examination must be between health care providers; thus, a dispute between the employer and its selected health care provider regarding the compensibility of the accident did not qualify. Ramirez v. IBP Prepared Foods, 2001-NMCA-036, 130 N.M. 559, 28 P.3d 1100, cert. denied, 130 N.M. 459, 26 P.3d 103. Change of healthcare provider not a final order. — Order allowing change in healthcare provider is not final and appealable. Murphy v. Strata Prod. Co., 2006-NMCA-008, 138 N.M. 809, 126 P.3d 1173. New Mexico license not required. — When the legislature used the phrase "health care provider as defined in Section 52-4-1," it was not referring solely to persons licensed in New Mexico. Coslett v. Third St. Grocery, 1994-NMCA-046, 117 N.M. 727, 876 P.2d 656, cert. denied, 117 N.M. 802, 877 P.2d 1105. Retaining jurisdiction to change compensation after results of surgery. — Trial court did not err in directing that if appellant agreed, defendants should furnish operation to alleviate effects of residual disability and in retaining jurisdiction to increase compensation payments if justified after the results of the surgery could be appraised, as such an order was provided for in this section. Yanez v. Skousen Constr. Co., 1968-NMSC-034, 78 N.M. 756, 438 P.2d 166, overruled on other grounds by American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030. Aggravation or extension of injury not compensable. — The rule requiring injured workmen to submit to surgical treatment reasonably essential to their recovery is but an adaptation of the familiar principle that aggravation or extension of an injury is not compensable, or that one may not recover for an aggravation of an injury caused by his own act. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958). Treating health care provider. — Physician who met with worker on one occasion for ten minutes more than sixteen months after worker's heart attack, after worker's claim was denied and after worker filed a complaint for worker compensation benefits and who had worker's medical records, deposition and job description to review, did not qualify as a treating physician. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 90. Insufficient evidence of maximum medical improvement where workers' compensation judge relied solely on inadmissible hearsay. — In a workers' compensation case, an independent medical examination report (IME), offered by an employer as evidence of the truth of the assertion that worker had reached maximum medical improvement (MMI) with an impairment rating of zero percent, constitutes hearsay subject to no exceptions in the rule, statutes or regulations. The workers' compensation judge (WCJ) erred in admitting the IME and relying on it as the basis for determining that worker reached MMI with a zero percent impairment rating, and therefore, there was insufficient evidence in the record to support the WCJ's conclusions concerning workers' MMI and impairment rating. Valenzuela v. A.S. Horner, Inc., 2016-NMCA-031, cert. denied. II. MEDICAL EXAMINATION.Medical examination that discovers unknown work injuries. — A doctor who performs an independent medical examination pursuant to the parties' agreement does not exceed the scope of his authority when he diagnoses injuries not specifically identified in the agreement and concludes that they were caused by the on-the-job accident and the worker is not precluded from seeking compensation for the newly diagnosed work injuries. Hall v. Carlsbad Supermarket/IGA, 2008-NMCA-026, 143 N.M. 479, 177 P.3d 530. No authority for exam on judge's own motion. — A worker's compensation judge abused his discretion by determining that he could order an independent medical examination on his own motion based on his determination that the medical record was confusing and that an independent examination would assist him in determining the issues in the case. Ramirez v. IBP Prepared Foods, 2001-NMCA-036, 130 N.M. 559, 28 P.3d 1100, cert. denied, 130 N.M. 459, 26 P.3d 103. Discretion of workers' compensation judge. — Party seeking an order authorizing the conducting of an independent medical examination must present evidence to show that the request is reasonably necessary; the workers' compensation judge is then invested with the discretion to determine whether, based upon the evidence presented, good cause exists for conducting the examination. Gutierrez v. J & B Mobile Homes, 1999-NMCA-007, 126 N.M. 494, 971 P.2d 1284. Ordered examination not improper where plaintiff's attorneys involved in malpractice against doctor. — Where a certain doctor examined and evaluated plaintiff at the request of plaintiff's first attorney, who withdrew from the case at an early stage, and defendants deposed him, and subsequently on motion of the defendants, the trial court ordered a second examination by this doctor who then testified at trial over plaintiff's objection, it was held that the reexamination and reevaluation was not improperly authorized by the trial court merely because plaintiff's attorneys at trial were involved in a medical malpractice action against the doctor, and the record did not show that the trial court abused its discretion in so ordering. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. Motion for independent medical examination not timely. — Where worker filed a complaint on May 10, 2007; trial was scheduled for January 25, 2008 and rescheduled for May 21, 2008; defendants had knowledge of worker's medical expert's opinion as to causation as early as May 10, 2007; and on May 1, 2008, defendants filed a motion for an independent medical examination on the issue of causation, the workers' compensation judge properly denied the motion because it was not timely. Baca v. Los Lunas Cmty. Programs, 2011-NMCA-008, 149 N.M. 198, 246 P.3d 1070. III. REFUSAL OF TREATMENT.Suspension of benefits depends on whether refusal unreasonable. — Question of whether refusal to submit to medical treatment should result in a reduction or suspension of compensation turns on a determination of whether the refusal is unreasonable. Brooks v. Hobbs Mun. Schs., 1984-NMCA-088, 101 N.M. 707, 688 P.2d 25. Failure to perform home exercises. — Where worker, who injured worker's back and shoulder, failed to perform a home exercise program that had been planned as part of worker's therapy; and although two independent evaluators had recommended that worker perform a home exercise program to improve worker's recovery, worker's health care professionals had never prescribed a specific home exercise program, worker's failure to perform a home exercise program was not an injurious practice. Ruiz v. Los Lunas Pub. Sch., 2013-NMCA-085. Refusal to undergo serious risk surgery not unreasonable. — Refusal to undergo major surgery which is attended by serious risk of life or to member of the body is not unreasonable and compensation should not be denied to injured workman (worker) on that account. Fowler v. W.G. Constr. Co., 1947-NMSC-049, 51 N.M. 441, 188 P.2d 160. If the operation be of a major character and attended with serious risk to life or member, an injured employee's refusal to submit to such operation is deemed not unreasonable, and compensation should not be denied on that account. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393; Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958). An employee may not be denied compensation because of his failure or refusal to accept medical treatment unless it be shown that such refusal was arbitrary and unreasonable, and this is a question of fact which must be supported by substantial evidence. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. An employee may not be denied compensation because of his failure or refusal to accept medical treatment unless it be shown that such refusal was arbitrary and unreasonable. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672. Before worker may be compelled to undergo serious medical or surgical treatment at the risk of suspension or reduction of his or her compensation, defendants must show the employability of the worker for a particular job or jobs following the successful treatment. Brooks v. Hobbs Mun. Schs., 1984-NMCA-088, 101 N.M. 707, 688 P.2d 25. Showing necessary for court to reduce compensation. — Absent a showing that a repeat myelogram is essential to promote the plaintiff's recovery, the court cannot exercise its discretion in reducing or suspending the plaintiff's compensation where the plaintiff refused to submit to medical or surgical treatment. Aranda v. D.A. & S. Oil Well Servicing, Inc., 1982-NMCA-035, 98 N.M. 217, 647 P.2d 419, cert. denied, 98 N.M. 336, 648 P.2d 794. Refusal to lose weight not refusal of medical treatment. — Where testimony of several doctors indicates that it is not "reasonably essential" for a workmen's (workers') compensation claimant to lose weight in order to promote his recovery, the claimant's failure to lose weight does not constitute a refusal to receive medical treatment such that compensation should be denied. Gonzales v. Bates Lumber Co., 1981-NMCA-052, 96 N.M. 422, 631 P.2d 328. Right of refusal does not depend entirely on medical opinion. — This statute does not make the right of refusal to submit to medical treatment depend entirely upon medical opinion. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672. The question whether plaintiff acted reasonably or not in refusing an operation is a question of fact and the trial court is not limited to expert testimony in considering the question. Rhodes v. Cottle Constr. Co., 1960-NMSC-130, 68 N.M. 18, 357 P.2d 672. A workmen's (workers') compensation plaintiff's fear of a surgical procedure is evidence to be considered on the question of a reasonable refusal thereof but is not sufficient in itself to require a finding that refusal was reasonable. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. Refusal of simple operation may reduce compensation. — When workman's (worker's) incapacity can be removed by a simple surgical operation which does not involve serious suffering or danger but he refuses to undergo such treatment, compensation payment may be suspended or reduced. Fowler v. W.G. Constr. Co., 1947-NMSC-049, 51 N.M. 441, 188 P.2d 160. It is in the discretion of the court to reduce or suspend compensation if the workman (worker) shall refuse to submit to medical or surgical treatment as is reasonably essential to promote his recovery. Dudley v. Ferguson Trucking Co., 1956-NMSC-052, 61 N.M. 166, 297 P.2d 313. Where workman (worker) refuses to submit to medical or surgical treatment as is reasonably essential to promote his recovery, the court may in its discretion reduce or suspend his compensation. The matter is clearly one within the discretion of the trial court, but the discretion is judicial and subject to review by court of appeals. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958). Where, although there was conflicting testimony, substantial evidence showed a "particular need" for a surgical procedure called a myelogram in order to diagnose, evaluate and determine the proper treatment for an injured workman's (worker's) back injury, and that the risks involved were minimal, the court of appeals held that defendants had met their burden of proving that refusal to undergo the procedure was arbitrary and unreasonable and affirmed the lower court's reduction of compensation. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. An injured workman (worker) will be denied compensation for an incapacity which may be removed or modified by an operation of a simple character, not involving serious suffering or danger. A refusal to undergo an operation under such circumstances is deemed unreasonable. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. Where evidence indicated that proposed surgery to claimant's injured heel to reduce the percentage of his disability would not be dangerous to life or limb, claimant's refusal to undergo the operation was not reasonable and an order reducing the compensation awarded him was justified. Fowler v. W.G. Constr. Co., 1947-NMSC-049, 51 N.M. 441, 188 P.2d 160. Refusal to participate in physical therapy justified. — There was sufficient evidence to uphold the judge's decision not to reduce or suspend the claimant's compensation since the record showed that the claimant was unable to fully participate in physical therapy because of incapacitating pain that was not of his own making, and that it was reasonable for patients not to fully participate in physical therapy under these circumstances. Crespin v. Consolidated Constructors, Inc., 1993-NMCA-109, 116 N.M. 334, 862 P.2d 442, cert. denied, 116 N.M. 364, 862 P.2d 1223. Where evidence supported finding that injured workman (worker) had unreasonably refused to undergo a myelogram, the court of appeals held that the trial court did not err in reducing his compensation to 15%, the amount of disability which it was testified he would probably continue to have after undergoing the myelogram and the treatment indicated by the results thereof. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. Lower court order, involving surgery for removal of a herniated vertebrae in which the injured workman's (worker's) refusal to submit to corrective surgery was permitted, to reduce the amount of his award was held to be erroneous and an abuse of discretion. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958). Where a myelogram was needed to aid in determining whether a disc problem existed and, if so, at what level, but it was not known what treatment, if any, would be indicated by the myelogram and, thus, not known what surgery, if any, would be indicated, the trial court's decision to reduce compensation if a myelogram is performed and plaintiff refuses the treatment indicated, if any, had no basis other than speculation, and was reversed by the court of appeals. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. Worker cannot postpone indefinitely determination of maximum medical improvement by declining surgery. — A worker cannot postpone indefinitely a determination of maximum medical improvement (MMI) by declining surgery. Once a physician has made a determination of MMI, discontinuing temporary total disability and calculating a permanent partial disability does not subject the worker to a Hobson's choice ("Have surgery or starve") or penalize him for declining surgery. It is merely a determination that a worker has reached a plateau of medical stability for the foreseeable future. Rael v. Wal-Mart Stores, Inc., 1994-NMCA-017, 117 N.M. 237, 871 P.2d 1, cert. denied, 117 N.M. 215, 870 P.2d 753. Myelogram in nature of surgical procedure. — Where the evidence supports the inference that a certain procedure called a myelogram would be performed in a hospital and would require both a surgeon and a radiologist, the courts of appeals considered myelography to be in the nature of a surgical procedure. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. A myelogram is a standard surgical procedure that would assist doctors in discovering the source of plaintiff's illness or sickness. Aranda v. D.A. & S. Oil Well Servicing, Inc., 1982-NMCA-035, 98 N.M. 217, 647 P.2d 419, cert. denied, 98 N.M. 336, 648 P.2d 794. Operation for laminectomy cannot be categorized as "simple" one to which no risk of life or limb attaches. Evans v. Stearns-Roger Mfg. Co., 253 F.2d 383 (10th Cir. 1958). IV. UNSANITARY OR INJURIOUS PRACTICES."Persist in any injurious practice" as used in this section means that a workman (worker) must, as a matter of habit, go on resolutely or stubbornly in spite of opposition, importunity or warning, to inflict or tend to inflict injury to himself. Martinez v. Zia Co., 1982-NMCA-172, 99 N.M. 80, 653 P.2d 1226. Worker's compensation judge did not abuse his discretion in finding that claimant's continued use of back brace and cane following back injury, against physician's recommendation, was an injurious practice, within the meaning of Subsection I, because it interfered with defendant's recovery from the injury. Chavarria v. Basin Moving & Storage, 1999-NMCA-032, 127 N.M. 67, 976 P.2d 1019. What constitutes "bad faith". — Where an employer terminated a claimant's temporary benefits, alleging that the claimant failed to follow the advice of his doctor, without seeking an order to terminate, the employer's conduct did not constitute fraud, malice, oppression or willful, wanton or reckless disregard of the claimant's rights; thus, the hearing officer erred in awarding attorney's fees. Cass v. Timberman Corp., 1990-NMCA-061, 110 N.M. 158, 793 P.2d 288, rev'd on other grounds, 1990-NMSC-112, 111 N.M. 184, 803 P.2d 669. V. EXPERT TESTIMONY.Permissible scope of testimony of a qualified health care provider. — A health care provider may testify about the entirety of a worker's relevant medical history, including treatment the health care provider provided and observations the health care provider made before the health care provider was lawfully designated as the worker's treating health care provider. DeWitt v. Rent-A-Ctr., Inc., 2009-NMSC-032, 146 N.M. 453, 212 P.3d 341. Doctor who was not an independent medical examiner under 1997 version was not allowed to testify. — Where worker was a chemistry technician at the employer's laboratory testing samples for heavy metals; worker became sick from exposure to heavy metals, worker's claim accrued under the 1997 version of 52-1-51 NMSA 1978; worker consulted two doctors about worker's illness who found that worker suffered from heavy metal toxicity that resulted from performing chemical analysis at the employer's laboratory; the medical director of the employer's occupational medicine unit recommended that worker see a third doctor; the third doctor, who saw worker one time, found no evidence of heavy metal poisoning; worker filed a compensation claim a year after worker saw the third doctor; there was no dispute as to a medical issue between the two doctors who were worker's authorized care givers; worker and the employer did not agree to select the third doctor as an independent medical examiner; and the workers' compensation judge did not appoint the third doctor as an independent medical examiner, the third doctor's testimony was inadmissible at the hearing on worker's claims because the third doctor was not a treating physician or an independent medical examiner. Brashar v. University of Calif. Regents, 2014-NMCA-068, cert. denied, 2014-NMCERT-006. Expert testimony in death benefits cases. — In a contested death benefits workers' compensation case, the parties can agree upon an independent medical examination (IME) examiner to perform an IME, the purpose of which is to determine the causal connection, if any, between the worker's injury and the worker's death, and the workers' compensation judge has the authority to order an IME for this purpose on the motion of a party or on its own motion. Lewis v. Albuquerque Public Schools, 2019-NMSC-022, aff'g in part and rev'g in part 2018-NMCA-049, 424 P.3d 643.Section not applicable to cause of death determination. — Where worker sought and obtained an award of workers' compensation disability benefits after she contracted allergic bronchopulmonary aspergillosis (ABPA) as a result of exposure to aspergillus mold while employed with the Albuquerque public schools, and where claimant, worker's widower, sought workers' compensation death benefits following worker's death, the workers' compensation judge (WCJ) erred in determining that 52-1-51(C) NMSA 1978 barred admission and consideration of cancer treatment records and the testimony of worker's oncologist in determining the cause of worker's death, because 52-1-51(C) NMSA 1978 does not apply to a WCJ's cause of death determination pursuant to 52-1-46 NMSA 1978, and therefore does not limit expert testimony regarding the circumstances and cause of a worker's death in connection with a claim for death benefits. Lewis v. Albuquerque Pub. Schs., 2018-NMCA-049, cert. granted. Written report constitutes "testimony". — The medical opinions of a health care provider prepared in the form of a written report constitute testimony under Subsection C. Jurado v. Levi Strauss & Co., 1995-NMCA-129, 120 N.M. 801, 907 P.2d 205, cert. denied, 120 N.M. 715, 905 P.2d 1119. Physician may express opinion in percentages of impairment. — An examining physician or an attending physician, when testifying as a medical expert, may express his opinion in percentages as to the impairment of the physical functions of the claimant, and further, an examining physician or an attending physician when testifying as a medical expert, after taking into consideration the claimant's age, education, training, general physical and mental capacity, and ability to obtain and retain gainful employment, may express his opinion as to the percentage of disability of the claimant. Seal v. Blackburn Tank Truck Serv., 1958-NMSC-087, 64 N.M. 282, 327 P.2d 797 (decided under former law). Error in considering unsworn testimony of two physicians. — In a case under the Workmen's (Workers') Compensation Act, the trial court commits prejudicial error in considering in evidence over plaintiff's objections the unsworn testimony of two surgeons when no additional evidence has been offered after an earlier hearing when the court announced it did not feel the defendant had sustained its burden of showing plaintiff's condition had changed for the better, but when after receiving these letters the court did not feel the defendant had sustained its burden of proof. Ennen v. Southwest Potash Co., 1959-NMSC-025, 65 N.M. 307, 336 P.2d 1062. Provision relating to privileged communication with physician. — Plaintiff's contention that an examining doctor's testimony was not admissible at trial because of the provisions of Section 38-6-6 NMSA 1978 as that section was worded prior to its amendment by Laws 1973, ch. 223, § 1, was without merit since the record indicated that defendants sought and paid for the examination. Therefore, the provisions in this section controlled. Escobedo v. Agriculture Prods. Co., 1974-NMCA-063, 86 N.M. 466, 525 P.2d 393. Failure to provide copy of report held not prejudicial. — Failure to provide claimant's counsel with a copy of a physician's independent medical report did not require reversal, where claimant never requested a copy of the report and there was no prejudice to claimant in not having it before trial. Sanchez v. National Elec. Supply Co., 1986-NMCA-109, 105 N.M. 97, 728 P.2d 1366. Continuance not required by failure to furnish claimant with copy of report. — Although Subsection G requires the claimant be furnished with a copy of the report, failure to comply does not automatically require a continuance. Sanchez v. National Elec. Supply Co., 1986-NMCA-109, 105 N.M. 97, 728 P.2d 1366. Use of records of unauthorized health care provider. — The records of an unauthorized health care provider were admissible in a workers' compensation hearing as the basis for expert opinion testimony of an authorized health care provider; but these medical records could not be used to rebut the opinion of an authorized health care provider as to the cause of the employee's injury. Lopez v. City of Albuquerque, 1994-NMCA-122, 118 N.M. 682, 884 P.2d 838, cert. denied, 118 N.M. 533, 882 P.2d 1046. Expert testimony. — The standard for admitting expert testimony established by Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in N.M. by State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the testimony of a health care provider pursuant to 52-1-28(B) or 52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014. Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442 (1967). For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988). 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 §§ 504 to 506. Workers' Compensation: Compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110. What amounts to failure or refusal to submit to medical treatment sufficient to bar recovery of workers' compensation, 3 A.L.R.5th 907. 99 C.J.S. Workmen's Compensation § 318; 100 C.J.S. Workmen's Compensation §§ 484, 485, 537.