52-1-22.  Work not casual employment.

Generally.

Contracts.

Elements.

Employee on loan.

Employees.

Liability.

Special employers.

Subcontractors.

Summary judgment.

If an employer has the right to exercise essential control over the work of workers of a particular contractor, that contractor cannot be considered to be an independent contractor for purposes of 52-1-22 NMSA 1978. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

In enacting 52-1-22 NMSA 1978, the legislature expressed its intent to afford immunity under the Workers’ Compensation Act to statutory employers. Meeting the statute’s requirements, however, is a prerequisite to being considered a statutory employer. Quintana v. University of California, 1991-NMCA-016, 111 N.M. 679, 808 P.2d 964, 1991 N.M. App. LEXIS 123 (N.M. Ct. App. 1991), cert. denied, 111 N.M. 678, 808 P.2d 963, 1991 N.M. LEXIS 85 (N.M. 1991), overruled in part, Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

In the determination of employment under the Workers’ Compensation Act, the “relative nature of the work” test has two parts: first, the character of the claimant’s work or business, which involves the factors of the degree of skill involved, the degree to which it is a separate calling or business, and the extent to which it can be expected to carry its own accident burden; second, the relationship of the claimant’s work or business to the purported employer’s business, which requires consideration of the extent to which claimant’s work is a regular part of the employer’s regular work, whether claimant’s work is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job. 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).

In the determination of employment, New Mexico has always referred to its primary test as the right of the employer to control the details of the work of the employee. When the control of the employer is limited to the ultimate results to be achieved under the contract relationship, the person engaged is an independent contractor. 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).

Under 52-1-23 NMSA 1978, when work procured when one employer contracts with another employer or with an employee is casual employment as to the contractor’s employer, the contractor becomes the employer; however, under 52-1-22 NMSA 1978, if the work so procured is a part or process in the trade or business of the employer, and the contractor involved is not an independent contractor then the employer is treated as the employer under the Act, regardless of whether the work so procured is casual. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

In order to deem a contractor an independent contractor under 52-1-22 NMSA 1978, the factors of the right to exercise control, the method of payment, the furnishing of equipment, and the right to fire have to be determined. Romero v. Shumate Constructors, 1994-NMCA-137, 119 N.M. 58, 888 P.2d 940, 1994 N.M. App. LEXIS 142 (N.M. Ct. App. 1994), aff'd in part and rev'd in part, 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996), overruled as stated in Mieras v. Dyncorp, 1996-NMCA-095, 122 N.M. 401, 925 P.2d 518, 1996 N.M. App. LEXIS 76 (N.M. Ct. App. 1996).

Cases involving statutory employers must be analyzed in terms of the dual test in 52-1-22 NMSA 1978 from the perspective of the relationship between the contracting employer and the employer of the claimant as well as the perspective of the type of work being done. When analyzing the relationship between the contracting employer and the claimant, the issue is whether the contracting employer is a special employer, a borrowing employer, or a regular employer. Rivera v. Sagebrush Sales, 1994-NMCA-119, 118 N.M. 676, 884 P.2d 832, 1994 N.M. App. LEXIS 119 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 366 (N.M. 1994).

It is the relationship between the general contractor and the employer of the claimant that is dispositive in determining the general contractor’s status as a statutory employee. Where a lumber company hired a temporary agency to place workers in its lumber yard and one of the workers was injured in the yard, the lumber company was not the injured worker’s statutory employee because it did not have control or have the right to control the details of how the temporary agency recruited, interviewed, or hired the worker. Rivera v. Sagebrush Sales, 1994-NMCA-119, 118 N.M. 676, 884 P.2d 832, 1994 N.M. App. LEXIS 119 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 366 (N.M. 1994).

Section 52-1-22 NMSA 1978, which relates to “statutory” employers, addresses the prime-contractor/subcontractor situation and is not intended to deal with injuries to workers supplied by labor suppliers while doing the regular work of the contracting employer. For 52-1-22 NMSA 1978 to apply, the employer must procure work to be done by a contractor other than an independent contractor and the work must be a part of the trade or business of the employer. Rivera v. Sagebrush Sales, 1994-NMCA-119, 118 N.M. 676, 884 P.2d 832, 1994 N.M. App. LEXIS 119 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 366 (N.M. 1994).

Right to employ and discharge at will ordinarily creates an employer-employee relationship. 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).

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).

Workman who was killed in a work-related accident while hauling dirt from the excavation of pond was not a casual employee because the work he was performing for his employer was for the purpose of, incidental to, and part of the employer’s plumbing business and was part of a project for the deepening of an irrigation pond undertaken by the employer. 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).

52-1-22 NMSA 1978 does not condition a remote employer’s liability for workers’ compensation benefits upon any subcontractor or immediate employer being uninsured where the statute contains an express exception for employers of independent contractors thus, it cannot fairly be described as making general contractors liable for compensation benefits for employees of uninsured subcontractors without regard for the nature of the employment relationship. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

Statutory employer liable under 52-1-22 NMSA 1978 for workers’ compensation benefits is immune from tort liability the same as are other employers. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

Employers of subcontractors that are not independent contractors are liable under 52-1-22 NMSA 1978 for payment of workers’ compensation to subcontractors injured in the course of employment. Chavez v. Sundt Corp., 1996-NMSC-046, 122 N.M. 78, 920 P.2d 1032, 1996 N.M. LEXIS 251 (N.M. 1996).

Where construction subcontractors agreed to perform work for a general contractor on a lump-sum basis, furnished the necessary materials, tools, and equipment to accomplish their work, operated as distinct businesses, and had the right to hire and fire assistants or employees as they saw fit, the subcontractors were not “employees,” and the general contractor was not a “statutory employer” under 52-1-22 NMSA 1978; the general contractor’s right to coordinate the performance of various subcontractors on the large project was not indicative of an employment relationship, nor was the fact that the general contractor imposed contractual obligations governing on-site safety requirements, wage requirements, and due date requirements. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

Totality of the circumstances should be considered in determining whether an employer has the right to exercise essential control over the work or workers of a particular contractor; if so, that contractor cannot be considered to be an independent contractor for purposes of 52-1-22 NMSA 1978. Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

Laboratory was a statutory employer under 52-1-22 NMSA 1978 because the work that plaintiff was performing under his subcontractor-employer’s contract with the laboratory was to be performed wholly by plaintiff and was in the trade, business, or undertaking of the laboratory; thus, the laboratory was entitled to the exclusivity provisions in 52-1-6D NMSA 1978 and 52-1-9 NMSA 1978 of the Workers’ Compensation Act with regard to plaintiff’s personal injury. Quintana v. University of California, 1991-NMCA-016, 111 N.M. 679, 808 P.2d 964, 1991 N.M. App. LEXIS 123 (N.M. Ct. App. 1991), cert. denied, 111 N.M. 678, 808 P.2d 963, 1991 N.M. LEXIS 85 (N.M. 1991), overruled in part, Harger v. Structural Servs., 1996-NMSC-018, 121 N.M. 657, 916 P.2d 1324, 1996 N.M. LEXIS 153 (N.M. 1996).

In a wrongful death case, summary judgment for defendant contractor on the ground that the contractor was immune from third-party tort liability under the exclusivity provisions of the Workers’ Compensation Act was improper; even though the contractor purchased workers’ compensation coverage for the deceased worker of a subcontractor, 52-1-22 NMSA 1978 explicitly required that for the contractor to be an “employer,” the subcontractor could not be an independent contractor and its work was required to be part of the contractor’s undertaking. Chavez v. Sundt Corp., 1996-NMSC-046, 122 N.M. 78, 920 P.2d 1032, 1996 N.M. LEXIS 251 (N.M. 1996).