A. In case an injury to, or death of, a worker results from his failure to observe statutory regulations appertaining to the safe conduct of his employment or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under the Workers’ Compensation Act [this article] [52-1-1 NMSA 1978] shall be reduced ten percent.
B. In case an injury to, or death of, a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if an injury to, or death of, a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, then the compensation otherwise payable under the Workers’ Compensation Act [52-1-1 NMSA 1978] shall be increased ten percent.
C. In case the death of a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if the death of a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, and the deceased worker leaves no eligible dependents under the Workers’ Compensation Act [52-1-1 NMSA 1978], in addition to the benefits provided for in Subsection A of Section 52-1-46 NMSA 1978, compensation in the amount of five thousand dollars ($5,000) shall be paid to the surviving father and mother of the deceased or, if either of them be deceased, to the survivor of them. The surviving father and mother, or either of them, may file a claim for the five thousand dollars ($5,000) compensation, provided the father or mother has given notice in the manner and within the time required by Section 52-1-29 NMSA 1978 and the claim is filed within one year from the date of the worker’s death. If there be no surviving father or mother, then the five thousand dollars ($5,000) compensation provided for in this subsection shall not be payable.
D. Any increased liability resulting from negligence on the part of the employer shall be recoverable from the employer only and not from the insurer, guarantor or surety of the employer under the Workers’ Compensation Act [52-1-1 NMSA 1978], except that this provision shall not be construed to prohibit an employer from insuring against such increased liability.
E. No employee shall file a claim for increased compensation under the Workers’ Compensation Act [52-1-1 NMSA 1978] on the basis of an injury suffered because of the lack of a safety device nor shall a dependent of a deceased employee or the father or mother as provided in Subsection C of this section file a claim on the basis of the death of a worker suffered because of the lack of a safety device, unless the claim identifies the specific safety device which it is claimed was not furnished by the employer. The employer is under a like duty to allege the specific safety device which it is claimed an employee failed to use before the employer may claim a reduction of compensation as herein provided.
HISTORY:
Laws 1929, ch. 113, § 7; C.S. 1929, § 156-107; Laws 1937, ch. 92, § 5; 1941 Comp., § 57-907; Laws 1953, ch. 96, § 1; 1953 59-10-7; Laws 1955, ch. 29, § 1; 1959, ch. 67, § 3; 1967, ch. 148, § 1; 1989, ch. 263, § 7.
Notes to Decisions
Failure to use safety devices.
Failure to observe lock out procedures.
Failure to use safety devices.
Failure to use safety devices.
Worker was entitled to a 10% increase in workers' compensation benefits for an employer's failure to use a “wet floor” sign because (1) the sign was not used where the worker was hurt, (2) the sign could not effectuate the sign's purpose if it were kept in storage, (3) written policies and providing such signs to custodians did not meet the statute, which obligated an employer to furnish adequate safety devices, and (4) NMSA 1978, § 52-1-8 barred blaming custodial staff. Benavides v. E. N.M. Med. Ctr., 2014-NMSC-037, 338 P.3d 1265, 2014 N.M. LEXIS 364 (N.M. 2014).
Generally.
The safety device statute, former § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978), was passed to compel employers to supply reasonable safety devices in general use for the protection of the workmen where safety devices are not specified by law. Only by observing it may employers avoid liability under it for compensable injuries to their employees; it is negligence to fail to do so if the facts render the act applicable. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711, 1953 N.M. LEXIS 982 (N.M. 1953).
In an action under the Workmen’s Compensation Act, former §§ 57-901 to 57-931, 1941 Comp. (now 52-1-1 NMSA 1978), where the claimant appealed from a judgment denying total permanent disability plus 50 percent additional compensation by reason of the failure of the employer to provide reasonable safety devices as required by the Act, where the claimant knew of the danger of using an incorrectly sized wrench and did not seek a new wrench, the court did not decide whether a wrench was a safety device within the meaning of the Act. Rowland v. Reynolds Elec. Eng'g Co., 1951-NMSC-046, 55 N.M. 287, 232 P.2d 689, 1951 N.M. LEXIS 743 (N.M. 1951).
Applicability.
Under 52-1-10 NMSA 1978, the injury or death of the worker must result from the employer’s failure to provide a safety device before the 10 percent penalty can apply; in the absence of a showing of causation, no issue of entitlement to the penalty is raised. Boughton v. Western Nuclear, 1983-NMCA-052, 99 N.M. 723, 663 P.2d 382, 1983 N.M. App. LEXIS 708 (N.M. Ct. App. 1983).
Where heavy gauge wires, which were used to hold cargo of prefabricated steel for shipping purposes, were installed so that they could be cut to allow removal of one section at a time, the fact that a person in an occupation similar to that of the unloading industry severed the wires all at once did not amount to proof that the wires were safety devices in general use for unloading purposes in order to qualify the injured worker to the statutory penalty. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475, 1959 N.M. LEXIS 955 (N.M. 1959).
Part of penalty provisions added to the Workmen’s Compensation Act by former § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978) do not apply to an industry where specific safety regulations are provided by statute, such as the mining industry. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080, 1949 N.M. LEXIS 671 (N.M. 1949).
Former § 67-2816, 1941 Comp. applied to the platform of a caboose attached to an ore train then being operated in or about an employer’s mine in connection with its mining operations; a violation of this section of the statute by the employer, which resulted in an injury to a workman, entitled the latter to the 50 percent additional compensation provided by law. Thwaits v. Kennecott Copper Corp., Chino Mines Div., 1948-NMSC-019, 52 N.M. 107, 192 P.2d 553, 1948 N.M. LEXIS 629 (N.M. 1948).
Construction.
Former 59-10-7, 1953 Comp. (now 52-1-10 NMSA 1978) must be liberally construed in favor of the worker, but this does not mean enlarging on the apparent legislative intent or giving words meaning beyond their ordinary scope. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475, 1959 N.M. LEXIS 955 (N.M. 1959).
Construction with other law.
Worker sought a 10 percent increase in his workers’ compensation disability benefits on reasoning that certain safety devices were required by regulations adopted under New Mexico’s Occupational Health and Safety Act. However, the safety devices required by the regulations were not required by law because 50-9-21A NMSA 1978 provided that nothing in New Mexico’s Occupational Health and Safety Act affected New Mexico’s Workmen’s Compensation Act, 52-1-1 NMSA 1978 or the liabilities of employers with respect to injuries arising out of or in the course of employment. Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, 1981 N.M. App. LEXIS 716 (N.M. Ct. App.), cert. denied, 96 N.M. 116, 628 P.2d 686, 1981 N.M. LEXIS 2342 (N.M. 1981).
Definitions.
Where the gloves provided to a workmen’s compensation claimant failed to insulate the wearer as required in the electrical industry, the gloves could not be classified as a safety device, and the employer and its carrier were liable under the Workmen’s Compensation Act for total and permanent disability benefits where the claimant sustained injuries while removing a transformer from a pole on which there were energized wires. Dickerson v. Farmer's Elec. Coop., 1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037, 1960 N.M. LEXIS 1142 (N.M. 1960).
Duty of employer.
Pursuant to former 59-10-7, 1953 Comp., it was the duty of the employer to furnish adequate safety devices in general use for the use or protection of the employee. In the event of the employer’s failure to do so, he was liable to be found guilty of negligence and subject to the penalty provided. Baca v. Gutierrez, 77 N.M. 428, 423 P.2d 617, 1967 N.M. LEXIS 2620, 1967 N.M. LEXIS 2633 (N.M. 1967).
Employer failed to provide a reasonable safety device; such failure required a compensation award to be increased by 10 per cent, former 59-10-7, 1953 Comp. (now 52-1-10 NMSA 1978). Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312, 1964 N.M. LEXIS 2322, 1964 N.M. LEXIS 2337 (N.M. 1964).
Under former 59-10-7, 1953 Comp. (now 52-1-10 NMSA 1978), it is the duty of the employer to supply reasonable safety devices in general use in the industry of the employer; it follows that if the employer is engaged in more than one industry, they are charged with supplying the safety devices in general use in each of such industries. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475, 1959 N.M. LEXIS 955 (N.M. 1959).
Where reasonable safety devices were in general use for detecting and eliminating natural gases and where the employer failed to provide the same for the protection of workers, the employer was negligent and liable under the safety device statute. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711, 1953 N.M. LEXIS 982 (N.M. 1953).
Penalty is suffered in two instances by an employer: (1) if injury to, or death of, a workman results from failure of the employer to provide the safety devices required by law; or (2) in any industry in which safety devices are not provided by statute, if injury to, or death of, a workman results from the negligence of the employer in failing to supply reasonable safety devices for the use or protection of the workman. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080, 1949 N.M. LEXIS 671 (N.M. 1949).
Charge that deceased at time of his injury was riding on the rear platform of a caboose on an ore train not equipped with reasonable safety devices, consisting of guard rails to prevent employees from falling or slipping off the platform, and that his death was the direct result of such failure to provide such safety device, brought a widow’s claim within the purview of former §§ 57-907 and 67-2816, 1941 Comp. Thwaits v. Kennecott Copper Corp., Chino Mines Div., 1948-NMSC-019, 52 N.M. 107, 192 P.2d 553, 1948 N.M. LEXIS 629 (N.M. 1948).
Because an employer knew or should have known of a practice of greasing gears the way an employee was doing when he suffered serious injuries, the employer’s failure to appropriately guard the gears, as required by former § 57-907, 1941 Comp., (now 52-1-10 NMSA 1978) entitled the employee to a penalty or additional workers’ compensation. Janney v. Fullroe, Inc., 1943-NMSC-042, 47 N.M. 423, 144 P.2d 145, 1943 N.M. LEXIS 51 (N.M. 1943).
Evidence.
—Sufficient.
Testimony that protective hats were in general use in the industry, and testimony of a doctor that such a protective hat, if worn, would have protected a claimant from injury, supported a trial court’s finding that a metal or plastic helmet was a reasonable safety device generally provided by employers for protection of workmen who work near overhead swinging cables, hooks, or certain machinery, and that an employer failed to provide such a safety device. Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312, 1964 N.M. LEXIS 2322, 1964 N.M. LEXIS 2337 (N.M. 1964).
Injured painter was properly awarded a penalty for an employer’s failure to furnish safety devices, where substantial evidence showed that barricades and flooring of elevator shafts were safety devices in general use in the local industry. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937, 1951 N.M. LEXIS 738 (N.M. 1951).
Failure to observe lock out procedures.
Employer’s claim that the benefits awarded to the widow of an employee who was killed when he became entrapped in a snub pulley conveyer belt mechanism had to be decreased by 10 percent pursuant to 52-1-10 NMSA 1978 as a result of the employee’s failure to observe standard lock out procedures established by federal and New Mexico OSHA regulations was without merit because the use of OSHA regulations to modify an employee’s workers’ compensation benefits was clearly precluded under 50-9-21A NMSA 1978. Bateman v. Springer Bldg. Materials Corp., 1989-NMCA-039, 108 N.M. 655, 777 P.2d 383, 1989 N.M. App. LEXIS 48 (N.M. Ct. App.), cert. denied, 108 N.M. 624, 776 P.2d 846, 1989 N.M. LEXIS 193 (N.M. 1989).
Failure to use safety devices.
Employer failed to properly preserve the issue as to whether the benefits awarded to the widow of an employee who was killed when he was entrapped in a snub pulley conveyor belt mechanism had to be decreased by 10 percent pursuant to 52-1-10 NMSA 1978 as a result of the employee’s failure to use a safety device because among the 30 findings of fact requested by the employer, there was nothing specifically identified as a “safety device.” Bateman v. Springer Bldg. Materials Corp., 1989-NMCA-039, 108 N.M. 655, 777 P.2d 383, 1989 N.M. App. LEXIS 48 (N.M. Ct. App.), cert. denied, 108 N.M. 624, 776 P.2d 846, 1989 N.M. LEXIS 193 (N.M. 1989).
Award of workers’ compensation benefits for gradual hearing loss with a 10 percent reduction was proper because the claimant failed to use safety devices, specifically hearing protection. Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761, 1988 N.M. App. LEXIS 101 (N.M. Ct. App.), cert. denied, 107 N.M. 785, 765 P.2d 758, 1988 N.M. LEXIS 289 (N.M. 1988).
Findings.
—Insufficient.
Reduction in workers’ compensation benefits to two employees arising out of an automobile accident for their use of alcohol and failure to wear seat belts was improper; the record was devoid of evidence that these factors caused their injuries, and their violation of the employer’s safety policies alone did not warrant a compensation reduction under 52-1-10A NMSA 1978. Ramirez v. Dawson Prod. Partners, 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043, 2000 N.M. App. LEXIS 1 (N.M. Ct. App. 2000).
—Sufficient.
Reduction of 10 percent in workers’ compensation benefits awarded after an employee died in an automobile accident was appropriate under 52-1-10A NMSA 1978 in light of findings that speeding was a contributing cause of the accident and the injuries. Ramirez v. Dawson Prod. Partners, 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043, 2000 N.M. App. LEXIS 1 (N.M. Ct. App. 2000).
Legislative intent.
Punitive purpose of the Workers’ Compensation Act, which was secondary to the remedial purpose, was adequately vindicated by 52-1-10 NMSA 1978 in cases where an employee lacking dependents was injured. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294, 706 P.2d 158, 1985 N.M. App. LEXIS 586 (N.M. Ct. App. 1985).
The determination of what is a reasonable safety device in general use under the safety device statute, former § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978), necessarily rests in the judgment and discretion of the employer, and much will depend on how he exercises that discretion. If he permits thoughts of cost and expense to outweigh considerations of safety, the statute is circumvented, and the personal security of his employees is imperiled; the legislative mind apparently felt that it would furnish the employer an incentive for resolving close questions of reasonableness and general use in favor of the workman and against himself. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711, 1953 N.M. LEXIS 982 (N.M. 1953).
In enacting § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978), it is clear that the legislature had in mind industries in which named safety devices are required by law as well as those in which specific safety devices are not require by law; as to the former, a penalty is to be incurred only in the event death or injury results to a workman from an employer’s failure to provide some safety device required by law; as to the latter, a penalty is incurred only if death or injury to a workman resulted from an employer’s negligence in failing to supply some “reasonable safety devices in general use” for the workman’s protection. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080, 1949 N.M. LEXIS 671 (N.M. 1949).
Penalty provision.
Because the penalty provision of former § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978) had been left out of the bill that was signed and published, it did not include the penalty provision against an employer unless the employer was included in the Mine Safety Act, former § 67-2001, 1941 Comp. et seq. (now 69-27-1 NMSA 1978), it did apply against an injured worker who had not used a required safety device, and any language not consistent with the penalty provision was considered surplusage in the statute. Clary v. Denman Drilling Co., 1954-NMSC-105, 58 N.M. 723, 276 P.2d 499, 1954 N.M. LEXIS 1189 (N.M. 1954).
Reduction in benefits.
Although a decedent was killed during the course of his employment and entitled to workers’ compensation benefits, an employer was entitled to a reduction in the benefits where despite the decedent’s safety training and knowledge, the decedent was in an area he knew was unsafe when he was killed. Aragon v. Anaconda Mining Co., 1982-NMCA-076, 98 N.M. 65, 644 P.2d 1054, 1982 N.M. App. LEXIS 855 (N.M. Ct. App. 1982).
Remedies.
In a workmen’s compensation action, a deceased employee’s surviving widow was entitled to a 50 percent statutory penalty pursuant to former 1929 Code, § 156-107 (now 52-1-10 NMSA 1978), because the employer had violated certain safety requirements by not grounding the concrete mixer. Neeley v. Union Potash & Chem. Co., 1943-NMSC-010, 47 N.M. 100, 137 P.2d 312, 1943 N.M. LEXIS 12 (N.M. 1943).
Sanctions.
Employer and insurer were properly ordered to pay an additional 10 percent of workmen’s compensation benefits to the widow and minor child of an employee who was killed while working on a pole carrying high voltage power lines, because the employer failed to supply insulated rubber gloves. Quintana v. East Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936, 1971 N.M. App. LEXIS 669 (N.M. Ct. App. 1971).
Subsection A.
By the terms of New Mexico’s Workers’ Compensation Act, in order for a reduction to be appropriate, the employee’s statutory violation or failure to use a safety device must have caused his injury. In the absence of a showing of causation, no issue of entitlement to the penalty is raised. Ramirez v. Dawson Prod. Partners, 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043, 2000 N.M. App. LEXIS 1 (N.M. Ct. App. 2000).
Under this section, New Mexico’s Workers’ Compensation Act did not provide for a reduction in benefits when an employee simply violated company policies in the absence of evidence that the violation caused the injury, which the employer did not produce. Ramirez v. Dawson Prod. Partners, 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043, 2000 N.M. App. LEXIS 1 (N.M. Ct. App. 2000).
In connection with an employee’s claim for workmen’s compensation after he was blinded in one eye breaking ore with a hammer, the trial court did not err in reducing benefits because he did not use employer-provided safety goggles, even though there was no law mandating the use of goggles. Pino v. Ozark Smelting & Mining Co., 1930-NMSC-057, 35 N.M. 87, 290 P. 409, 1930 N.M. LEXIS 66 (N.M. 1930).
Subsection B.
“Wet floor” sign was a safety device because (1) the sign was tangible, instead of a conduct rule, and (2) such signs were generally used. Benavides v. E. N.M. Med. Ctr., 2014-NMSC-037, 338 P.3d 1265, 2014 N.M. LEXIS 364 (N.M. 2014).
Subsection B.
Workers’ compensation claimant was not entitled to a 10 percent increase in disability benefits for the employer’s alleged failure to use safety devices, because, under 50-9-21A NMSA 1978, safety devices required by the Occupational Health and Safety Act, 50-9-1 NMSA 1978, regulations were not required “by law” for the purposes of 52-1-10B NMSA 1978. Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, 1981 N.M. App. LEXIS 716 (N.M. Ct. App.), cert. denied, 96 N.M. 116, 628 P.2d 686, 1981 N.M. LEXIS 2342 (N.M. 1981).
In an action for workmen’s compensation benefits by an employee who was walking on a travel-way at his employer’s mine and fell through a manhole when an insecure cover shifted when he stepped on it, the court erred in allowing increased compensation benefits based on a finding that the employer failed to supply safety devices required by 52-1-10B NMSA 1978. The manhole cover or hatch was a safety device authorized by two safety regulations that had the force and effect of law, pursuant to former 69-8-6B NMSA 1978, so there was no “failure to provide” on the part of the employer; furthermore, the hole was left uncovered by the negligence of fellow employees. Jaramillo v. Anaconda Co., 1981-NMCA-030, 95 N.M. 728, 625 P.2d 1245, 1981 N.M. App. LEXIS 696 (N.M. Ct. App. 1981).
Employer was liable for penalty following workman’s death at construction site even if the workman was engaged in the construction of a retaining wall to protect against cave-ins, because the employer failed to furnish safety device in general use in construction industry as provided by former § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978). Abeyta v. Pavletich, 1953-NMSC-068, 57 N.M. 454, 260 P.2d 366, 1953 N.M. LEXIS 1001 (N.M. 1953).
Subsection E.
Although the deceased employee was not wearing a seat belt at the time of the injury and the employer may have been entitled to a reduction in compensation under Subsection A, the employer could not avail itself of the benefit of the law because under Subsection E, the employer was required to specifically plead the issue, which it did not. Salazar v. Santa Fe, 1983-NMCA-134, 102 N.M. 172, 692 P.2d 1321, 1983 N.M. App. LEXIS 826 (N.M. Ct. App. 1983).
A minor child in a workmen’s compensation case was not entitled to extra compensation as a result of her father’s death where there was no showing of a particular safety device that the employer failed to provide. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84, 1956 N.M. LEXIS 1082 (N.M. 1956).
Willful conduct.
Temporary employee who lost his arm in an auger accident was barred from bringing a claim against his employer on the theory that the employer had willfully injured the employee and was therefore not protected by the exclusivity provisions of the New Mexico Workers’ Compensation Act, 52-1-6D, E, 52-1-8, and 52-1-9 NMSA 1978. Although the employer assigned the employee to tasks prohibited by a staffing agreement and the employer failed to install a guard on the auger, the employer could not have been reasonably expected to foresee that the accident would occur; thus, the employer did not act willfully. Cordova v. SOS Staffing Servs., 273 F. Supp. 2d 1213, 2003 U.S. Dist. LEXIS 12952 (D.N.M. 2003), aff'd, 111 Fed. Appx. 992, 2004 U.S. App. LEXIS 21367 (10th Cir. N.M. 2004).
Workers’ compensation.
By the terms of 52-1-10A NMSA 1978, in order for a reduction in workers’ compensation benefits to be appropriate, an employee’s statutory violation or failure to use a safety device must have caused his injury; in the absence of a showing of causation, no issue of entitlement to the penalty is raised. Ramirez v. Dawson Prod. Partners, 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043, 2000 N.M. App. LEXIS 1 (N.M. Ct. App. 2000).
Where a worker’s back was injured because the Bobcat he was operating was not equipped with a rear view mirror, the trial court properly awarded an increase of 10 percent pursuant to 52-1-10B NMSA 1978 even though the complaint failed to identify the specific safety device that the worker claimed was not furnished, as required by 52-1-10E NMSA 1978; the safety device issue was before the trial court pursuant to Rule 1-015 NMRA because it was tried with the implied consent of the employer and the insurer. Martinez v. Zia Co., 1983-NMCA-063, 100 N.M. 8, 664 P.2d 1021, 1983 N.M. App. LEXIS 726 (N.M. Ct. App. 1983).
Where a worker’s back was injured when the Bobcat he was operating hit concrete as he was backing the machine, and the worker was unable to see behind him because the Bobcat was not equipped with a rear view mirror, the trial court properly awarded an increase of 10 percent pursuant to 52-1-10B NMSA 1978 because such a mirror was a reasonable safety device in general use. Martinez v. Zia Co., 1983-NMCA-063, 100 N.M. 8, 664 P.2d 1021, 1983 N.M. App. LEXIS 726 (N.M. Ct. App. 1983).
Where an employee who was receiving compensation benefits sought recovery of a 10 percent penalty due pursuant to brought pursuant to former 59-10-7, 1953 Comp. (now 52-1-10 NMSA 1978), because of his employer’s failure to provide guard rails, the claim did not fall within the purview of the one year statute of limitations provided by former 59-10-13, 1953 Comp. (repealed); because former 59-10-7, 1953 Comp. was a penalty statute, the employee was entitled to file a lawsuit for the penalty despite the fact that he was receiving regular benefits. Garza v. W. A. Jourdan, Inc., 1977-NMCA-136, 91 N.M. 268, 572 P.2d 1276, 1977 N.M. App. LEXIS 693 (N.M. Ct. App.), cert. denied, 91 N.M. 249, 572 P.2d 1257, 1977 N.M. LEXIS 1246 (N.M. 1977).
In an action alleging violations of former 63-20-1, 1953 Comp. (now 69-27-1 NMSA 1978) and other statutes to recover extra compensation under former 59-10-7, 1953 Comp. (now 52-1-10 NMSA 1978) on the theory that defendant employer stored detonators and fuses together with explosives in and on a truck, which led to an explosion that caused the death of a minor daughter’s father while employed by the employer, a motion to dismiss by the employer was properly granted because plaintiff next friend of the daughter failed to state a claim upon which relief could be granted under former 59-10-7, 1953 Comp. (now 52-1-10 NMSA 1978) because she had not alleged a particular safety device that the employer failed to provide. Further, a “safe place to work” was not a “safety device” within the meaning of former 63-20-1, 1953 Comp. (now 69-27-1 NMSA 1978). Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84, 1956 N.M. LEXIS 1082 (N.M. 1956).
Under former § 57-907, 1941 Comp. (now 52-1-10 NMSA 1978), a claimant’s award of workmen’s compensation benefits was subject to a 50 percent reduction, because the claimant failed to utilize safety devices furnished by his employer. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080, 1949 N.M. LEXIS 671 (N.M. 1949).
Research References and Practice Aids
Cross references.
Compensation benefits for death, 52-1-46 NMSA 1978.
Limitations on compensation benefits, 52-1-47 NMSA 1978.