As used in the Workers’ Compensation Act [52-1-1 NMSA 1978], unless the context otherwise requires, “injury by accident arising out of and in the course of employment” shall include accidental injuries to workers and death resulting from accidental injury as a result of their employment and while at work in any place where their employer’s business requires their presence but shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer’s negligence.
HISTORY:
1953 59-10-12.12, enacted by Laws 1975, ch. 284, § 6; 1986, ch. 22, § 3; 1987, ch. 235, § 9.
Notes to Decisions
Injuries sustained in extra-hazardous occupations or pursuit.
Course of employment.
Workers' Compensation Act did not apply to plaintiff personal representative's claim against a decedent's employer. Given the undisputed facts, the decedent was not within the course of employment when he left a motel in a vehicle provided by defendant in an intoxicated state. Armenta v. A.S. Horner, Inc., 2015-NMCA-092, 356 P.3d 17, 2015 N.M. App. LEXIS 64 (N.M. Ct. App. 2015), cert. dismissed, 370 P.3d 475, 2016 N.M. LEXIS 99 (N.M. 2016).
Generally.
One whose work not only requires him to travel but for whom travel is an integral part of his employment is within the scope of employment continuously while traveling, and may, therefore, be eligible for workers’ compensation benefits as a traveling employee for injuries he sustains while away from home; the injury must, however, arise out of and in the course of employment, which means that it must occur during the commission of an activity that is reasonable and foreseeable both as to its nature and manner of commission, and must be of some benefit to the employer, even though that benefit to the employer need not be pecuniary and may be as intangible as a well-fed and well-rested employee. 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).
Part of the analysis whether an injury is compensable under the traveling employee exception should include the concept that an injury incurred in an otherwise reasonable and foreseeable recreational activity will not be compensable if the activity was conducted in an unreasonable or unforeseeable manner; in addition, the activity giving rise to the injury must confer some benefit on the employer, and it must be reasonably related or incidental to employment. 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).
While a traveling employee is considered to be acting within the scope of his or her employment while on the road, one seeking compensation for an injury must still demonstrate that the injury arose out of and in the course of employment. 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).
Rationale behind the traveling employee exception to the “coming and going” rule, which excludes coverage for injuries to any worker occurring while on his way to or after leaving work, is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels; in addition, where the employment requires travel, the employee is consequently exposed to hazards he or she would otherwise have the option of avoiding, so that the hazards of the route become the hazards of the employment. 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).
Employee who was injured when she tripped over a sprinkler head while walking to an employee parking lot after completing her work shift was entitled to workers’ compensation benefits and was not precluded from receiving benefits under the “going-and-coming” rule, 52-1-19 NMSA 1978. An employee, while on the employer’s premises coming to or going from the actual workplace, was in a place where the employee was reasonably expected to be, and was engaged in a necessary incident of employment; further, an employer’s premises included parking lots intended for employees or customers, whether within the main company premises or separated from it. 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).
Workmen’s compensation claimant was not entitled to benefits under the Workmen’s Compensation Act, former 59-10-1, 1953 Comp. et seq., because his injury from being shot in the leg during an argument with the guard at the gate when the claimant tried to enter the job site for the sole purpose of picking up an advance on his wages did not arise in the course of the claimant’s employment; the claimant’s reason for returning to the job site was not designed to be of service to the employer or to further the employer’s business and entering the gate with the armed guard did not present a risk that was incident to the claimant’s employment because he was only shot due to personal animosity that had developed between the claimant and the guard, and former 59-10-12J(6)(III), L, 1953 Comp., provided that compensation was unavailable for injuries that occurred while a claimant was on his way to assume his employment duties or after he had left those duties. Fautheree v. Insulation & Specialties, 1960-NMSC-056, 67 N.M. 230, 354 P.2d 526, 1960 N.M. LEXIS 1178 (N.M. 1960).
Leaving for work at an earlier time was not sufficient to constitute a “special mission” to avoid the pronouncement of the “going and coming rule” under this section. Ross v. Marberry & Co., 1960-NMSC-013, 66 N.M. 404, 349 P.2d 123, 1960 N.M. LEXIS 1127 (N.M. 1960).
Hotel chambermaid’s slip and fall on ice in an alley outside the hotel as she was leaving to go home was not an injury arising out of or in the course of her employment and was not compensable under the Workmen’s Compensation Act. Martinez v. Fidel, 1956-NMSC-023, 61 N.M. 6, 293 P.2d 654, 1956 N.M. LEXIS 1039 (N.M. 1956).
Applicability.
Because the heart attack that the workers’ compensation claimant, who was a police officer, sustained was not an injury that arose out of and in the course of his employment within the meaning of 52-1-9, 52-1-19, 52-1-28A(1) NMSA 1978, the claimant was not entitled to workers’ compensation benefits; the heart attack did not adequately relate to the claimant’s employment because it occurred while he was jogging as part of a self-directed off-duty athletic activity, over which the employer had no control, in which the claimant was engaged in an effort to meet the qualifications for enrollment in the state law enforcement academy in order to get the certification that 29-7-6B NMSA 1978 required in order for the claimant to transfer from his job as a deputy jailer to a job as a deputy field officer. Meeks v. Eddy County Sheriff's Dep't, 1994-NMCA-134, 118 N.M. 643, 884 P.2d 534, 1994 N.M. App. LEXIS 129 (N.M. Ct. App.), cert. denied, 118 N.M. 731, 885 P.2d 1325, 1994 N.M. LEXIS 413 (N.M. 1994).
Employee who was injured during lunchtime was entitled to an award of workers’ compensation benefits pursuant to 52-1-19 NMSA 1978 where the employee was engaged in an off-premise activity, a meeting with an attorney discussing work related matters in furtherance of her employer’s interests. Smith v. Albuquerque, 1986-NMCA-113, 105 N.M. 125, 729 P.2d 1379, 1986 N.M. App. LEXIS 686 (N.M. Ct. App. 1986), superseded by statute as stated in Barela v. Midcon of New Mexico, 1989-NMCA-093, 109 N.M. 360, 785 P.2d 271, 1989 N.M. App. LEXIS 100 (N.M. Ct. App. 1989).
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).
Section 52-1-19 NMSA 1978 was inapplicable because the death of two salesmen were not during the course of employment; thus, there was no coverage under the going and coming rule of the workers’ compensation laws, and the exclusivity provision of the act was inapplicable. Beckham v. Brown, 1983-NMCA-051, 100 N.M. 1, 664 P.2d 1014, 1983 N.M. App. LEXIS 709 (N.M. Ct. App. 1983).
Where plaintiff employee sustained injuries on her way home after performing special duties during non-working hours, she was entitled to workmen’s compensation benefits from her employer and its insurer, under the special duty exception to the coming and going rule. Avila v. Pleasuretime Soda, 1977-NMCA-079, 90 N.M. 707, 568 P.2d 233, 1977 N.M. App. LEXIS 641 (N.M. Ct. App. 1977).
Employee was entitled to workmen’s compensation benefits from an employer and an insurer because he showed that he had sustained injuries that arose out of the course of his employment, as defined in former 59-10-13.3, 1953 Comp.; the employee’s work-related use of a motor scooter on a ramp contributed something to the hazard of a fall in which he was injured and the only medical testimony that was admitted showed that the fall caused those injuries. Williams v. Gallup, 77 N.M. 286, 421 P.2d 804, 1966 N.M. LEXIS 2766, 1966 N.M. LEXIS 2808 (N.M. 1966).
Where an employee was killed in a car accident on the way home while he was carrying a report that his immediate supervisor was to pick up the following morning at the employee’s house, sign, and deliver to the employer’s offices, the workmen’s compensation claim by the employee’s widow was improperly denied because the employee was performing a service that arose out of and in the course of his employment and the exclusion of going and coming from work under former 59-10-12(1), 1953 Comp., did not apply. Brown v. Arapahoe Drilling Co., 1962-NMSC-051, 70 N.M. 99, 370 P.2d 816, 1962 N.M. LEXIS 1549 (N.M. 1962).
Hotel chambermaid’s slip and fall on ice in an alley outside the hotel as she was leaving to go home was not an injury arising out of or in the course of her employment and was not compensable under the Workmen’s Compensation Act; the hazard of slipping on the ice in the alley was not a causative danger peculiar to the employee’s employment, and the injury thus could not properly be found to have arisen out of the employment. Martinez v. Fidel, 1956-NMSC-023, 61 N.M. 6, 293 P.2d 654, 1956 N.M. LEXIS 1039 (N.M. 1956).
Claimant could not recover for disability under the Workers’ Compensation Act because a dance hall operator who hired the claimant as a carpenter was neither an employer nor engaged in an extrahazardous occupation for purposes of the Act; extra-hazardous occupations or pursuits did not include ranching, or dance hall operation. Williams v. Cooper, 1953-NMSC-050, 57 N.M. 373, 258 P.2d 1139, 1953 N.M. LEXIS 988 (N.M. 1953), superseded by statute as stated in Rodriguez v. Brand West Dairy, 2016-NMSC-029, 378 P.3d 13, 2016 N.M. LEXIS 150 (N.M. 2016).
Under former § 57-912(1), 1941 Comp. of the Workmen’s Compensation Act, it was the business or undertaking of the employer, not the particular duty or task of the employee at the time of the injury, which determines whether the Workmen’s Compensation Act was applicable. Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365, 1950 N.M. LEXIS 655, 1950 N.M. LEXIS 656, 1951 N.M. LEXIS 706 (N.M. 1950).
Under the Workers’ Compensation Act, the term “injury by accident” means nothing more than an accident as the word is ordinarily used and cannot be extended to include an occupational disease or illness such as silicosis resulting from prolonged exposure to silicon dust in a mine. Aranbula v. Banner Min. Co., 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867, 1945 N.M. LEXIS 417 (N.M. 1945).
Burden of proof.
Workmen’s Compensation Act does not make the employer an insurer of the employee against injury or death occurring during their hours of employment and the burden is always on a plaintiff to establish that the employee sustained an accidental injury in the course of their employment and arising out of it. Teal v. Potash Co. of Am., 1956-NMSC-006, 60 N.M. 409, 292 P.2d 99, 1956 N.M. LEXIS 1152 (N.M. 1956).
Business travel.
—Generally.
If the work of an employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Clark v. Electronic City, 1977-NMCA-048, 90 N.M. 477, 565 P.2d 348, 1977 N.M. App. LEXIS 613 (N.M. Ct. App. 1977).
—Deviation.
If in the course of a business trip an employee makes a major deviation, major because of its duration in time or because of its nature, or both, as a matter of law he has abandoned his employment. Then, regardless if he returns to the route of the business trip, this does not in and of itself return him to the scope of employment and an injury occurring after this does not arise out of or in the course of his employment. Clark v. Electronic City, 1977-NMCA-048, 90 N.M. 477, 565 P.2d 348, 1977 N.M. App. LEXIS 613 (N.M. Ct. App. 1977).
Compensation.
Where an employee had finished working, had clocked out, and slipped and fell as she left the store where she worked, and she did not prove that her employer was negligent, compensation for her injury was precluded by 52-1-9 NMSA 1978 and 52-1-19 NMSA 1978 since her injury would have been compensable under the Workmen’s Compensation Act, 52-1-1, et seq. NMSA 1978, only if it was both “arising out of” and “in the course of” employment, but compensation was not allowed under the “going and coming” rule where her injury occurred while she was leaving work, and the trial court’s award of compensation was reversed. Romero v. S. S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, 1981 N.M. App. LEXIS 677 (N.M. Ct. App. 1981), 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).
Under former 59-10-12.12, 1953 Comp. (now 52-1-19 NMSA 1978), an employee was properly awarded workmen’s compensation benefits for injuries he sustained when as he was leaving work he was assaulted by a security officer, who did not work for the employer, because the employee’s incident, which resulted in an accidental injury as he was leaving his work duties, was exactly the type of fact situation contemplated under former 59-10-12.12, 1953 Comp. (now 52-1-19 NMSA 1978), which defines the range of claims compensable as accidental injuries arising out of, and in the course of employment. Mountain States Tel. & Tel. Co. v. Montoya, 1978-NMSC-057, 91 N.M. 788, 581 P.2d 1283, 1978 N.M. LEXIS 944 (N.M. 1978).
Beneficiaries of a decedent’s estate were entitled to recover workers’ compensation benefits because former 59-10-33, 1953 Comp. extended coverage to employees that were injured within the course of their employment within six months after leaving New Mexico while employed with a New Mexico employer. Roan v. D. W. Falls, Inc., 1963-NMSC-154, 72 N.M. 464, 384 P.2d 896, 1963 N.M. LEXIS 2014 (N.M. 1963).
Course of employment.
Where evidence showed that a police officer’s heart attack was precipitated by his exertion in shoveling his car out of an arroyo when he became stuck while he was searching for a fugitive, the officer was entitled to workmen’s compensation benefits because he was injured by an accident arising out of and in the course of his employment under former 57-902, 1941 Comp. Hathaway v. New Mexico State Police, 57 N.M. 747, 263 P.2d 690, 1953 N.M. LEXIS 1050, 1953 N.M. LEXIS 1051 (N.M. 1953).
Definitions.
Under the “going-and-coming” rule, 52-1-19 NMSA 1978, an employee, while on the employer’s premises coming to or going from the actual workplace, is in a place where the employee is reasonably expected to be, and is engaged in a necessary incident of employment. The “course of employment” includes not only the time for which the employee is actually paid but also a reasonable time during which the employee is necessarily on the employer’s premises while passing to or from the place where the work is actually done. 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).
Egress/ingress.
When an employee is going to or coming from his place of work and is on the employer’s premises he is within the protective ambit of the Workmen’s Compensation Act, at least when using the customary means of ingress and egress or route of employee’s travel or is otherwise injured in a place he may reasonably be expected to be. 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).
Eligibility.
Under this section and 52-5-1 NMSA 1978, the workers fell within the traveling employees exception of the Workers’ Compensation Act because their travel provided mutual benefit to the employer and the employee, and the conditions of employment placed the employees in a zone of special danger out which the injury arose; the workers were injured in the course of their employment. Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, 150 N.M. 164, 258 P.3d 443, 2011 N.M. LEXIS 385 (N.M. 2011).
Truck drivers injured during mandatory rest periods were eligible for workers’ compensation benefits under the traveling-employee exception to the “going-and-coming” rule. Chavez v. ABF Freight Sys., 2001-NMCA-039, 130 N.M. 524, 27 P.3d 1011, 2001 N.M. App. LEXIS 37 (N.M. Ct. App. 2001).
Although 52-1-19 NMSA 1978 generally found an employee ineligible for compensation benefits if the employee was injured on his way to or returning from his employment, the employee was injured while at work in a place where the employer’s business required him to be; the employee’s duties did not end when traveling from the lounge to the office, as he was travelling between jobsites. Garcia v. Phil Garcia's Elec. Contractor, 1982-NMCA-186, 99 N.M. 374, 658 P.2d 449, 1982 N.M. App. LEXIS 990 (N.M. Ct. App. 1982), cert. denied, 99 N.M. 358, 658 P.2d 433, 1983 N.M. LEXIS 2276 (N.M. 1983).
Two employees on their way to work who were directed or requested by their supervisor to push his car that had run out of gas while he was working for the employer were in the course and scope of their employment when they were injured as they pushed the car and were entitled to workmen’s compensation benefits. Feldhut v. Latham, 1955-NMSC-080, 60 N.M. 87, 287 P.2d 615, 1955 N.M. LEXIS 1068 (N.M. 1955).
Fatal injuries sustained by head driller in accident while on way to drilling site with other crew members was in course of employment and compensable because he was in charge of seeing to it that the crew was transported to the drilling site. Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365, 1950 N.M. LEXIS 655, 1950 N.M. LEXIS 656, 1951 N.M. LEXIS 706 (N.M. 1950).
Former § 57-912(1), 1941 Comp. was not intended to deprive a workman of compensation, who at the time of his injury was acting within his contract of employment, if his injury arose out of and was suffered in the course of his employment. Wilson v. Rowan Drilling Co., 55 N.M. 81, 227 P.2d 365, 1950 N.M. LEXIS 655, 1950 N.M. LEXIS 656, 1951 N.M. LEXIS 706 (N.M. 1950).
Employees.
Where a worker, although regularly employed by a company, agreed to repair an owner’s windmill in order to augment his income, and where the worker was engaged in that work at the time he was injured, he was entitled to workmen’s compensation under former 59-10-12M(2)e, 1953 Comp. (now 52-1-19 NMSA 1978). Bailey v. Farr, 1959-NMSC-071, 66 N.M. 162, 344 P.2d 173, 1959 N.M. LEXIS 954 (N.M. 1959).
Silicosis, developed as a result of long exposure to silica dust while working in a mine, is not an accidental injury as contemplated by the Workmen’s Compensation Act. Aranbula v. Banner Min. Co., 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867, 1945 N.M. LEXIS 417 (N.M. 1945).
Evidence.
—Insufficient.
Trial court’s denial of an award of total permanent disability under the Workmen’s Compensation Act to an employee was affirmed because the trial court was not convinced of the truth of the employee’s version nor was the trial court convinced of the validity of the employee’s extra-judicial statements made to certain doctors. Jacquez v. McKinney, 1968-NMSC-006, 78 N.M. 641, 436 P.2d 501, 1968 N.M. LEXIS 1876 (N.M. 1968).
In a workmen’s compensation case, it was error for the trial court to reduce the level of compensation due the employee based solely upon the employer’s submission of the unsworn statements of two medical doctors; the admission of the statements contravened former 21-1-1(43), 1953 Comp., and the general rule against the admission of a witness’ testimony unless the witness was under oath and available for purposes of cross-examination. Ennen v. Southwest Potash Co., 1959-NMSC-025, 65 N.M. 307, 336 P.2d 1062, 1959 N.M. LEXIS 905 (N.M. 1959).
Jury verdict was not inconsistent in finding that an employee sustained an on-the-job injury as a result of heavy lifting, but no disability, where the employee continued working for over a week and did not report any injury until after participating in two rodeos; referring to expert testimony showing that the employee’s fractured vertebrae did not result from the heavy lifting, the court affirmed the trial court judgment that the employee was not entitled to compensation from his employer and its insurer under the terms of the Workmen’s Compensation Act, former 59-10-1 1953 Comp., et seq. (now 52-1-1 NMSA 1978 et seq.). Howse v. Robert E. McKee Co., 1957-NMSC-070, 63 N.M. 129, 314 P.2d 727, 1957 N.M. LEXIS 945 (N.M. 1957).
—Sufficient.
Where an employee was struck by a security guard as the employee was leaving the employer’s premises, the resulting injury was sustained in the course of his employment; thus, the employee was entitled to workmen’s compensation benefits. Mountain States Tel. & Tel. Co. v. Montoya, 1978-NMSC-057, 91 N.M. 788, 581 P.2d 1283, 1978 N.M. LEXIS 944 (N.M. 1978).
Exemption.
Where a claimant’s injury came within an exception to the going and coming rule, traveling between two points of an employer’s premises, the claimant was not required to prove negligence; the claimant slipped and fell in a department store as she walked through the store to get to the salon where she worked. Lovato v. Maxim's Beauty Salon, 1989-NMCA-083, 109 N.M. 138, 782 P.2d 391, 1989 N.M. App. LEXIS 84 (N.M. Ct. App. 1989).
Findings.
—Sufficient.
Employee was properly denied workers’ compensation under the traveling employee rule for injuries he sustained as a passenger in another employee’s vehicle; it was unnecessary for him to accompany two other employees who had business purposes for the trip, and his presence in the vehicle conferred no benefit upon the employer. 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).
Employee was properly awarded workers’ compensation under the traveling employee rule for injuries he sustained as a passenger in another employee’s vehicle; he was being transported to a nearby town to begin his scheduled days off as anticipated in an employment agreement. 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).
Workers’ compensation judge properly found that an employee’s death arose out of his employment pursuant to the traveling employee rule; the primary purposes of his trip were to transport another employee to a town to begin his scheduled days off and to transport dirty uniforms for laundering, in part at the request of his supervisor. 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).
Trial court made an unambiguous finding that a claimant’s disability was a natural and direct result of an accidental injury arising out of the employment where it found that the employee sustained an accidental injury to his back, arising out of and in the course of his employment, that it was incidental to his employment, and that as a result of the injury, he suffered an entire loss of his earning capacity. Waymire v. Signal Oil Field Serv., 77 N.M. 297, 422 P.2d 34, 1966 N.M. LEXIS 2821 (N.M. 1966).
Furnish.
Furnish in former 59-10-19.1A, 1953 Comp. (now 52-1-19 NMSA 1978) required more than a passive willingness to respond to a demand; former 59-10-19.1B, 1953 Comp., required an offer to furnish medical services to avoid liability for the services procured by plaintiff employee. Furnish in former 59-10-19.1B, 1953 Comp. also required more than a passive willingness to respond to a demand. Garcia v. Genuine Parts Co., 1977-NMCA-007, 90 N.M. 124, 560 P.2d 545, 1977 N.M. App. LEXIS 569 (N.M. Ct. App.), cert. denied, 90 N.M. 254, 561 P.2d 1347, 1977 N.M. LEXIS 1168 (N.M. 1977).
Going and coming rule.
Worker, who was employed under Medicaid as a personal care attendant for the worker's mentally disabled adult child, was not entitled to workers' compensation benefits because, when the son attacked the worker as the worker was driving home, the worker was not performing service arising out of and in the course of the worker's employment. Begay v. Consumer Direct Pers. Care, 2015-NMCA-025, 344 P.3d 1083, 2014 N.M. App. LEXIS 117 (N.M. Ct. App. 2014), cert. denied, 346 P.3d 370, 2015 N.M. LEXIS 44 (N.M. 2015).
Where plaintiff state employee was injured in a parking lot owned by the New Mexico Department of Transportation (DOT) on her way to her daily commute to work by private bus, the exclusivity provisions of the New Mexico Workers’ Compensation Act did not bar plaintiff’s negligence action against the DOT because the going and coming rule applied under this section. The commuter lot was not provided exclusively for state employees, and plaintiff’s use of the parking lot was totally unrelated to her work duties. Quintero v. State DOT, 2010-NMCA-081, 148 N.M. 903, 242 P.3d 470, 2010 N.M. App. LEXIS 72 (N.M. Ct. App. 2010), cert. quashed, 269 P.3d 904, 2011 N.M. LEXIS 410 (N.M. 2011).
Oil field workers injured in a car accident while traveling home from the drilling rig failed to establish that their travel between the job site and their homes gave rise to the traveling employee exception to the going and coming rule. The employment did not contribute to the accident because no circumstance arising from the employment presented them with any greater risk on the way home than that faced by normal commuters, the oil field workers traveled home because of the proximity of their homes to the job site and not because of any lack of accommodations at the rig, and their employment did not require them to travel away from their primary job site to perform other duties at another location. Harkness v. McKay Oil Corp., 2008-NMCA-123, 144 N.M. 782, 192 P.3d 777, 2008 N.M. App. LEXIS 94 (N.M. Ct. App. 2008), cert. quashed, 146 N.M. 604, 213 P.3d 508, 2009 N.M. LEXIS 222 (N.M. 2009).
Where an employee was struck and injured on his way to work by a co-worker driving the employer’s vehicle on a “mail run,” and the accident occurred about 30 minutes before the employee’s shift began and two miles away from the employer’s premises, the Workers’ Compensation Act (52-1-1 NMSA 1978) provided the exclusive remedy for the employee’s injuries because the “going and coming” rule and “course of employment” doctrine applied and the “dual persona” doctrine did not apply. Espinosa v. Albuquerque Publ. Co., 1997-NMCA-072, 123 N.M. 605, 943 P.2d 1058, 1997 N.M. App. LEXIS 65 (N.M. Ct. App. 1997).
Pursuant to 52-1-19 NMSA 1978, appellant claimant’s injuries were not compensable under the going-and-coming-rule; the parking lot where the injury occurred was not owned by appellee employer, exclusively used by claimant, or assigned by the employer to claimant. Constantineau v. First Nat'l Bank, 1991-NMCA-040, 112 N.M. 38, 810 P.2d 1258, 1991 N.M. App. LEXIS 145 (N.M. Ct. App.), cert. denied, 112 N.M. 21, 810 P.2d 1241, 1991 N.M. LEXIS 157 (N.M. 1991).
Special errand exception possibly applied to an employee injured returning to work from speech therapy that was focused to help the employee gain skills needed to operate a flower shop; 52-1-19 NMSA 1978 referred to the “going and coming” rule and excluded any right to recovery where a worker sustained an injury occurring while on his way to assume the duties of his employment or after leaving such duties where the proximate cause of damage was not the employer’s negligence. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, 1984 N.M. App. LEXIS 746 (N.M. Ct. App. 1984).
Surviving spouse of decedent was entitled to relief under the Workmen’s Compensation Act, former 59-10-12, 1953 Comp. (now 52-1-19 NMSA 1978) as a result of the decedent’s death in a car accident because the fatal injuries suffered by the decedent arose out of and in the course of her employment where the employer ordered the decedent and several other employees to attend a training session, and the decedent was killed after dropping off her coworkers who all rode in a car pool with the decedent to attend the special training session. Therefore, the “going and coming” rule was inapplicable to the facts. Edens v. New Mexico Health & Social Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65, 1976 N.M. LEXIS 788 (N.M. 1976).
Employee’s injury was not compensable under the workmen’s compensation statutes where the injury occurred after the conclusion of the employee’s shift and while she was on the way to her car in the employer’s parking lot; the court explained that, in the absence of any showing of employer negligence, injuries sustained while going and coming to work were not compensable under 52-1-19 NMSA 1978. Hayes v. Ampex Corp., 1973-NMCA-105, 85 N.M. 444, 512 P.2d 1280, 1973 N.M. App. LEXIS 755 (N.M. Ct. App. 1973), 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).
Injuries sustained in extra-hazardous occupations or pursuit.
Silage cutting did not come within the definition of an extra-hazardous occupation under former 59-10-12C, 1953 Comp., nor within the definition of milling, which was an extra-hazardous occupation, thus an employee injured while cutting silage was not entitled to workers’ compensation benefits. Graham v. Wheeler, 77 N.M. 455, 423 P.2d 980, 1967 N.M. LEXIS 2652 (N.M. 1967).
Trial court properly granted summary judgment to poultry farmers in a laborer’s action for workmen’s compensation benefits because the laborer’s work on the farm was not classified by the Workmen’s Compensation Act as extra-hazardous, pursuant to former 59-10-10, 1953 Comp. and 59-10-12, 1953 Comp. Thomas v. Gardner, 1965-NMSC-045, 75 N.M. 371, 404 P.2d 853, 1965 N.M. LEXIS 1532 (N.M. 1965).
Hanging of venetian blinds, during which a school maintenance man was injured (assuming it was not work done in the decoration, alteration, or repair of any building, as required by former § 57-912, 1941 Comp., of the Workmen’s Compensation Act) was still incidental to the worker’s job; thus the accident was compensable as involving extra-hazardous employment. Scofield v. Lordsburg Mun. Sch. Dist., 1949-NMSC-027, 53 N.M. 249, 205 P.2d 834, 1949 N.M. LEXIS 685 (N.M. 1949).
Under the former Workers’ Compensation Act, the words “injuries sustained in extrahazardous occupations or pursuit,” included death resulting from injury. Vukovich v. St. Louis, Rocky Mountain & Pac. Co., 1936-NMSC-053, 40 N.M. 374, 60 P.2d 356, 1936 N.M. LEXIS 54 (N.M. 1936).
Liability.
When the railroad crossing was adjacent to the employer’s plant, the employer had negotiated a right of passage over the crossing, and the crossing was the sole means for ingress and egress to the employer’s plant, the crossing was sufficiently connected to the employer’s business as to be an integral part of it. Thus, the crossing constituted part of the employer’s premises for purposes of a widow’s recovery of death benefits under the premises exception to the coming and going rule. Garcia v. Mt. Taylor Millwork, 1989-NMCA-100, 111 N.M. 17, 801 P.2d 87, 1989 N.M. App. LEXIS 122 (N.M. Ct. App. 1989).
Requirements.
Under the “going-and-coming” rule, 52-1-19 NMSA 1978, employee who was injured while traveling for his employer was not to be denied benefits solely because the injury occurred in an unusual way. Employee’s activities were reasonable and of some benefit to the employer. Chavez v. ABF Freight Sys., 2001-NMCA-039, 130 N.M. 524, 27 P.3d 1011, 2001 N.M. App. LEXIS 37 (N.M. Ct. App. 2001).
Employee was entitled to workers’ compensation benefits for a heart attack he had during a lunchtime recreational activity because the activity occurred on the employer’s premises, and the employer knew of and acquiesced in the activity; thus, the activity was an incident of the employment because the recreation satisfied the two requirements of “arising out of” employment and “in the course of” employment. Kloer v. Las Vegas, 1987-NMCA-140, 106 N.M. 594, 746 P.2d 1126, 1987 N.M. App. LEXIS 793 (N.M. Ct. App. 1987), superseded by statute as stated in Fogleman v. Duke City Auto. Servs., 2000-NMCA-039, 128 N.M. 840, 999 P.2d 1072, 2000 N.M. App. LEXIS 26 (N.M. Ct. App. 2000).
Causal connection between an accident and an injury complained of, which is required to be proved as a medical probability in order to entitle a workmen’s compensation claimant to recover, does not have to be proved conclusively but there must be some proof; and the proof must be substantial; in New Mexico it must at least permit of a reasonable inference that the disability is the natural and direct result, as a medical probability, of the accident which is involved in the case under trial and not of some other accident which occurred before or after the accident in question. Gammon v. Ebasco Corp., 1965-NMSC-015, 74 N.M. 789, 399 P.2d 279, 1965 N.M. LEXIS 1500 (N.M. 1965).
Trial court properly sustained, pursuant to former N.M. R. Civ. P. 41(b), 21-1-1(41), 1953 Comp. (now Rule 1-041 NMRA), an employer’s motion to dismiss an employee’s complaint to recover workmen’s compensation for a knee injury where there was no evidence that the employee’s injury was caused by a work-related accident or that there was any decrease in his wage earning ability. The employee was not disabled and there was no decrease in his wage earning ability under former 59-10-12.1, 1953 Comp. Blancett v. Homestake-Sapin Partners, 1963-NMSC-180, 73 N.M. 47, 385 P.2d 568, 1963 N.M. LEXIS 2031 (N.M. 1963).
Special errand.
Special errand rule is applied where (a) there is an express or implied request that the service be performed after working hours by an employee who has fixed hours of employment; (b) the trip involved on the errand be an integral part of the service performed; and (c) the work performed, although related to the employment, be special in the sense that the task requested was not one which was regular and recurring during the normal hours of employment. Clemmer v. Carpenter, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, 1982 N.M. App. LEXIS 894 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 3010 (N.M. 1982).
Workmen’s compensation death benefits were properly awarded to the widow of an employee that was killed in a car accident while driving through 10 inches of snow to attend a Coast Guard Reserve meeting and also to do some work for the employer after the meeting. Clemmer v. Carpenter, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, 1982 N.M. App. LEXIS 894 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 3010 (N.M. 1982).
Where an employee is requested by his employer to return and do “a service outside his regular duty,” the sole purpose of which was to help his employer in the latter’s business, the going and coming rule is subject to an exception and the employee is then on a special errand. The special request for unusual service is the decisive factor which brings the employee, throughout the entire trip to and from the place of business, in the course of rendering a service for the employer. Clemmer v. Carpenter, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, 1982 N.M. App. LEXIS 894 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 3010 (N.M. 1982).
Spouse.
Under former 59-10-12.12, 1953 Comp. (now 52-1-19 NMSA 1978), the surviving husband of a state agency employee who died from injuries she sustained in a motor vehicle accident, was not entitled to workmen’s compensation benefits because his deceased wife was not performing any duties of her employment at the time of the accident, even though travel on the employer’s business required the employee to be on the road after work. Edens v. New Mexico Health & Social Servs. Dep't, 1975-NMCA-064, 88 N.M. 366, 540 P.2d 846, 1975 N.M. App. LEXIS 710 (N.M. Ct. App. 1975), rev'd, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65, 1976 N.M. LEXIS 788 (N.M. 1976).
Workers’ compensation.
Because an employee was on his way to assume the duties of his employment at the time of his injuring accident, he had a compensable claim under the extra-hazardous provision of the Workmen’s Compensation Act, 52-1-19 NMSA 1978, which was his exclusive remedy, and thus he was precluded from bringing a negligence action against his employer. Galles Chevrolet Co. v. Chaney, 1979-NMSC-027, 92 N.M. 618, 593 P.2d 59, 1979 N.M. LEXIS 1283 (N.M. 1979).
Decedent was injured during the course of her employment where she was injured after dropping off her co-employees who were ordered to attend a training session and form a car pool. Edens v. New Mexico Health & Social Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65, 1976 N.M. LEXIS 788 (N.M. 1976).
Since an employee became ill as a result of eating food in her employer’s restaurant, which food had been given to her in partial payment for her services, the employee suffered an injury which arose in and out of the course of her employment as a waitress, even though the food was eaten after her fixed hours had ended, in view of the facts that she was still in her uniform and was subject to recall in case her services were required. Clower v. Grossman, 1951-NMSC-075, 55 N.M. 546, 237 P.2d 353, 1951 N.M. LEXIS 776 (N.M. 1951).
Research References and Practice Aids
New Mexico Law Review.
Comment: A Comparison Of Workers’ Compensation In The United States And Mexico, Renee L. Camacho, 26 N.M. L. Rev. 133 (1996).
Workers’ Compensation Law — The Sexual Harassment Claim Quandary: Workers’ Compensation As An Inadequate And Unavailable Remedy: Cox v. Chino Mines/Phelps Dodge, Carlos M. Quinones, 24 N.M. L. Rev. 565 (1994).