{ "id": 1599013, "name": "Loretta MEDINA, Plaintiff-Appellant, v. ORIGINAL HAMBURGER STAND, and United Pacific Insurance Co., Defendants-Appellees", "name_abbreviation": "Medina v. Original Hamburger Stand", "decision_date": "1986-10-28", "docket_number": "No. 9155", "first_page": "78", "last_page": "81", "citations": [ { "type": "official", "cite": "105 N.M. 78" }, { "type": "parallel", "cite": "728 P.2d 488" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "66 N.M. 15", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847922 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/66/0015-01" ] }, { "cite": "81 N.M. 710", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358313 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0710-01" ] }, { "cite": "104 N.M. 674", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594963 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/104/0674-01" ] }, { "cite": "69 N.M. 132", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790772 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0132-01" ] }, { "cite": "104 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595000 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/104/0050-01" ] }, { "cite": "104 N.M. 401", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594937 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0401-01" ] } ], "analysis": { "cardinality": 454, "char_count": 7611, "ocr_confidence": 0.798, "pagerank": { "raw": 5.3831170342230926e-08, "percentile": 0.33718606760471365 }, "sha256": "e94657da87e9d2fd177f57520ebffee48d227c9ef833886896fa359ada36fac3", "simhash": "1:3b4652ea7e2c1f72", "word_count": 1178 }, "last_updated": "2023-07-14T20:20:30.820213+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GARCIA and FRUMAN, JJ., concur." ], "parties": [ "Loretta MEDINA, Plaintiff-Appellant, v. ORIGINAL HAMBURGER STAND, and United Pacific Insurance Co., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nPlaintiff appeals from a judgment dismissing her claim for worker\u2019s compensation benefits. As a result of our decision in Fierro v. Stanley\u2019s Hardware, 104 N.M. 401, 722 P.2d 652 (Ct.App.1985), rev\u2019d on other grounds, 104 N.M. 50, 716 P.2d 241 (1986), holding a psychologist could not render \u201cexpert medical testimony\u201d as to causation under NMSA 1978, Section 52-1-28(B), the trial court disallowed plaintiff\u2019s osteopathic physician from rendering expert medical testimony as to causation. This appeal presents the question of whether the trial court erred in disallowing that testimony. We hold it did and reverse.\nSection 52-l-28(B) provides:\nIn all cases where the defendants deny that an alleged disability is a natural and direct result of the accident, the workman must establish that causal connection as a medical probability by expert medical testimony. No award of compensation shall be based on speculation or on expert testimony that as a medical possibility the causal connection exists. [Emphasis added.]\nWe focus on the emphasized phrase \u201cmedical probability by expert medical testimony.\u201d May an osteopathic physician licensed under NMSA 1978, Sections 61-10-1 to -21 (Repl.1986) qualify to give expert medical testimony as to causation under Section 52-l-28(B)? In answering that question in the affirmative, we address here only the statutory language, that is, whether osteopaths, as a profession, are by definition qualified to give causation testimony. We are not concerned with the individual qualifications of an osteopath since that is a matter to be determined by the trial court. See Sturgeon v. Clark, 69 N.M. 132, 364 P.2d 757 (1961).\nIn holding that psychologists did not qualify under Section 52-l-28(B), Fierro relied primarily on the provisions of the Professional Psychologist Act, NMSA 1978, Sections 61-9-1 to -18 (Repl.1986), and specifically Section 61-9-17 thereof which prohibits psychologists from engaging in the practice of medicine as defined by the laws of this state. In Fierro, to demonstrate that the practice of medicine did not include psychology, we cited to NMSA 1978, Section 61-6-15 (Repl.1986) which defines the \u201cpractice of medicine.\u201d Instead of comparing that definition with the definition of the \u201cpractice of psychology\u201d as found in Section 61-9-3(D), we took a shortcut and simply noted that the legislation covering medicine and surgery as contained in NMSA 1978, Sections 61-6-1 to -28 (Repl.1986) did not apply to or affect the practice of psychology. \u00a7 61-6-16(F)(6). The problem caused by that reference, as applied to this case, comes about because the same section says Sections 61-6-1 to -28 shall not apply to or affect the practice of osteopathy. \u00a7 61 \u2014 6\u201416(F)(1).\nNo doubt the trial court in the case before us saw no reason to make any distinction between the practice of osteopathy and the practice of psychology since both are excluded from the provisions of the act governing medicine and surgery under Section 61-6-16(F)(l) and (6). Defendants forcefully argue for that distinction on appeal. By taking the shortcut and relying in part on Section 61-6-16(F), the rationale in Fierro broke down. We take this opportunity to fix it.\nHad we compared the definition of \u201cpractice of medicine\u201d as defined in Section 61-6-15 with the definition of the \u201cpractice of psychology\u201d under Section 61-9-3(D) in light of the plain language of Section 52-l-28(B), we would have determined that \u201cexpert medical testimony\u201d does not include psychologists. When a statute is free from ambiguity, there is no room for construction and it is to be given effect as written. Grauerholtz v. New Mexico Labor & Industrial Commission, 104 N.M. 674, 726 P.2d 351 (1986). Also, absent clearly expressed legislative intent requiring otherwise, words or phrases in a statute will be given their usual, ordinary meaning. Tafoya v. New Mexico State Police Board, 81 N.M. 710, 472 P.2d 973 (1970). Thus, we reached the correct result in Fierro.\nWe note, however, that Section 61-6-16(F) excepts the listed professions from the general licensing requirements of Article 6 (medicine and surgery). Chapter 61 provides separate licensing requirements for the listed professions. These professions are not necessarily excluded from the practice of medicine; rather, we must look to the specific definition of each profession to determine if it involves the practice of medicine.\nApplying the same approach here, we reach a different result. Again, Section 61-6-15 defines the practice of medicine. Section 61-10-14, dealing with the privileges of osteopathic physicians and surgeons, provides in part:\nOsteopathic physicians and surgeons licensed hereunder shall have equal rights, privileges and obligations in the handling of cases and rendering of medical services in all branches and phases of the healing arts as are accorded or permitted physicians and surgeons of other schools of practice; that such general rights shall extend to the rendering of medical services under the provisions of public health, welfare, assistance laws and other fields of public medicine, and no regulations shall be made with respect thereto limiting, excluding or discriminating against osteopathic physicians and surgeons.\nWhen those provisions are compared, we see no basis for excluding osteopaths, as a profession, from giving expert medical testimony under Section 52-1-28(B).\nDefendants attempt to make distinctions in education and training between medical physicians and surgeons and osteopathic physicians and surgeons, referring us to Munroe v. Wall, 66 N.M. 15, 340 P.2d 1069 (1959), which upheld a declaratory judgment that the governing board of a public hospital did not have to afford osteopathic physicians -and surgeons the same treatment as is given to doctors of medicine. We are not concerned here with distinctions between the professions. We are only concerned with the question of whether, by statutory construction, an osteopath qualifies to give expert medical testimony. We hold osteopathic physicians and surgeons may give expert medical testimony under Section 52-1-28(B).\nPlaintiff raised two additional issues. Commendably, both have been resolved which allows us to focus on the true controversy. One issue challenged the trial court\u2019s findings which plaintiff interpreted to exclude her expert\u2019s testimony on the language used in expressing his opinions as well as his lack of qualifications to testify as a medical expert. Although it is not clear that the trial court excluded the testimony on any ground other than qualifications, defendants concede, and we agree, that it is not the choice of words that is at issue; rather, it is whether an osteopathic physician qualifies as an \u201cappropriate speaker.\u201d We hold he does.\nFinally, plaintiff challenged the disallowance of medical expenses, claiming that failure to prove disability would not necessarily require disallowance of otherwise legitimate medical bills. Without admitting liability, defendants paid these expenses after the brief-in-chief had been filed.\nWe reverse and remand with directions to complete the trial of this case in accordance with this opinion.\nIT IS SO ORDERED.\nGARCIA and FRUMAN, JJ., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Roger V. Eaton, Messersmith, Eaton & Keenan, Albuquerque, for plaintiff-appellant.", "John P. Massey, Butt, Thornton & Baehr, P.C., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "728 P.2d 488\nLoretta MEDINA, Plaintiff-Appellant, v. ORIGINAL HAMBURGER STAND, and United Pacific Insurance Co., Defendants-Appellees.\nNo. 9155.\nCourt of Appeals of New Mexico.\nOct. 28, 1986.\nRoger V. Eaton, Messersmith, Eaton & Keenan, Albuquerque, for plaintiff-appellant.\nJohn P. Massey, Butt, Thornton & Baehr, P.C., Albuquerque, for defendants-appellees." }, "file_name": "0078-01", "first_page_order": 118, "last_page_order": 121 }