52-1-16.  Worker; real estate salesperson excepted.

Generally.

Applicability.

Compensation.

Contract.

Employees.

Right to control.

Worker.

A claimant was not a “worker” as defined in 52-1-16 NMSA 1978, where the claimant’s motivation in joining a monastery and performing service while there was to know and serve God, where the primary purpose of the monastery was to further the spiritual development of its members, and where the claimant was assigned service tasks in order to facilitate their spiritual development; claimant rendered her services out of religious devotion and the room, board, training, and vestry were rendered to her to facilitate her spiritual development. Joyce v. Pecos Benedictine Monastery, 1995-NMCA-054, 119 N.M. 764, 895 P.2d 286, 1995 N.M. App. LEXIS 37 (N.M. Ct. App. 1995).

Premature filing section of the Workers’ Compensation Act, specifically 52-1-69 NMSA 1978, does not apply to dependents, as that term is defined in 52-1-17 NMSA 1978, but expressly applies to a “worker”, as that term is defined in 52-1-16 NMSA 1978, and 52-1-31 NMSA 1978 provides additional evidence that the Act distinguishes between workers and dependents. Pursuant to 52-1-30B NMSA 1978, the worker’s entitlement to future compensation payments is contingent upon the totality and permanency of his disability, and 52-1-69 NMSA 1978 bars him from making a claim for compensation benefits he is already receiving. Zamora v. CDK Contracting Co., 1987-NMCA-093, 106 N.M. 309, 742 P.2d 521, 1987 N.M. App. LEXIS 764 (N.M. Ct. App.), cert. quashed, 106 N.M. 353, 742 P.2d 1058, 1987 N.M. LEXIS 3711 (N.M. 1987).

Claimant carpenter, who framed a house for a general contractor, hired and fired his own workers, owned his own equipment, and received a lump-sum payment at the end of the job, was an independent contractor and ineligible for workers’ compensation benefits after being accidentally injured on the job because he was not an “employee” under 52-1-16 NMSA 1978; the contractor’s agent exercised only general supervisory control over the claimant and did not transform the claimant from an independent contractor into an employee. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, 1982 N.M. App. LEXIS 836 (N.M. Ct. App.), cert. denied, 98 N.M. 50, 644 P.2d 1039, 1982 N.M. LEXIS 2931 (N.M. 1982).

Messenger transporting ballot boxes and an election judge were not entitled to workmen’s compensation following an automobile accident because the definition of workman did not include independent contractors or public officers. The court found that neither claimant was a workman under the provisions of former  59-10-12H, I, 1953 Comp. Candelaria v. Board of County Comm'rs, 77 N.M. 458, 423 P.2d 982, 1967 N.M. LEXIS 2654 (N.M. 1967).

In order to be considered a “workman” or “employee” subject to coverage under the Workers’ Compensation Act (52-1-1 NMSA 1978), there must exist both a right of the employer to control the details of the work of the employee, and a contract express or implied of employment for hire. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846, 1981 N.M. App. LEXIS 791 (N.M. Ct. App. 1981).

Teacher was not barred under 52-1-8 NMSA 1978 from bringing a tort action for injuries sustained as a result of the alleged negligence of a student who was performing an errand for another teacher because the student was not an employee of the school within the meaning of 52-1-16 NMSA 1978 and because the injuries sustained by the teacher, who was leaving the school to have lunch when he was injured and was not then in the course of employment, were not covered by the New Mexico Workmen’s Compensation Act pursuant to 52-1-19 NMSA 1978. Trembath v. Riggs, 1983-NMCA-152, 100 N.M. 615, 673 P.2d 1348, 1983 N.M. App. LEXIS 816 (N.M. Ct. App. 1983), overruled,  Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743, 1987 N.M. LEXIS 3520 (N.M. 1987).

Words “employer” and “employee”, as used in the New Mexico Workmen’s Compensation Act are used in their natural sense and intended to describe the conventional relation between the employer who pays wages to an employee for labor; to be entitled to compensation, an employee must be one who is earning money, at or immediately prior to the time of their injury, from an employer, as defined by statute. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846, 1981 N.M. App. LEXIS 791 (N.M. Ct. App. 1981).

Claimant was neither a workman under former 59-10-12.9, 1953 Comp. (now 52-1-16 NMSA 1978) nor a contractor under former 59-10-12.15, 1953 Comp. (now 52-1-22 NMSA 1978), but he was an independent contractor based on the claimant’s work and its relationship to the purported employer’s business, and therefore, he was not entitled to workman’s compensation benefits under former 59-10-1, 1953 Comp. et. seq. (now 52-1-1 NMSA 1978 et seq.). Burton v. Crawford & Co., 1976-NMCA-070, 89 N.M. 436, 553 P.2d 716, 1976 N.M. App. LEXIS 598 (N.M. Ct. App.), cert. denied, 90 N.M. 7, 558 P.2d 619, 1976 N.M. LEXIS 989 (N.M. 1976).

Plaintiff was an employee of defendant because defendant exercised control over plaintiff’s acts for the purpose of defendant’s trade or business; he was not a casual employee or an independent contractor and was covered by workmen’s compensation. Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, 1976 N.M. App. LEXIS 545 (N.M. Ct. App.), cert. denied, 89 N.M. 206, 549 P.2d 284, 1976 N.M. LEXIS 882 (N.M. 1976).

Decedent who was killed while hauling dirt in his own truck, in connection with a company’s deepening of an irrigation pond, was not a casual employee of the company within the meaning of former 59-10-12.9, 1953 Comp. because there was substantial evidence that the work the decedent was performing was for the purpose and a part of the company’s undertaking and, thus, was not casual employment under former 59-10-12.15 or 59-10-12.9, 1953 Comp. Abbott v. Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404, 1974 N.M. App. LEXIS 681 (N.M. Ct. App. 1974).

Trial court’s finding that a decedent who was killed while hauling dirt for a company in his own truck was an employee or workman within the meaning of former 59-10-12.9, 1953 Comp. was affirmed because it was supported by evidence that the decedent was paid on an hourly basis, that the company prepared W-2 and W-4 forms for the decedent and withheld taxes from his pay, and that the company reserved the right to discharge the decedent at any time if it felt that his work was unsatisfactory. Abbott v. Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404, 1974 N.M. App. LEXIS 681 (N.M. Ct. App. 1974).

Decedent, who was killed in a work-related accident, was an employee under former 59-10-12.9, 1953 Comp. (now 52-1-16 NMSA 1978) because he was paid by the hour, he had taxes withheld from his pay, he had entered into a contract of hire with the employer, and he could be discharged any time the employer felt that his work was unsatisfactory. Abbott v. Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404, 1974 N.M. App. LEXIS 681 (N.M. Ct. App. 1974).

Because a working partner was not a “workman” as defined in former  59-10-12I, 1953 Comp., he could not recover compensation as an employee. Jernigan v. Clark & Day Exploration Co., 1959-NMSC-033, 65 N.M. 355, 337 P.2d 614, 1959 N.M. LEXIS 913 (N.M. 1959).

In determining whether a workers’ compensation claimant is an “employee” under 52-1-16A NMSA 1978 and, thus, entitled to benefits under the New Mexico Workers’ Compensation Act, 52-1-1.1 NMSA 1978 et seq., the primary consideration is the right to control. Benavidez v. Serra Blanca Motors, 1998-NMCA-070, 125 N.M. 235, 959 P.2d 569, 1998 N.M. App. LEXIS 48 (N.M. Ct. App. 1998).