NM Stat § 52-1-10 (2021)
2021 New Mexico Statutes|Chapter 52 - Workers' Compensation|Article 1 - Workers' Compensation|Section 52-1-10 - Increase or reduction in compensation based on failure of employer to provide or failure of employee to use safety devices.

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 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 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, 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, 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 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 Comp., § 59-10-7; Laws 1955, ch. 29, § 1; 1959, ch. 67, § 3; 1967, ch. 148, § 1; 1989, ch. 263, § 7. ANNOTATIONSCross references. — For the Mining Safety Act, see 69-8-1 NMSA 1978 et seq. For devices required by mining safety rules and regulations as "safety devices required by law," see 69-8-15 NMSA 1978. I. GENERAL CONSIDERATION.Effect of Laws 1953, ch. 96. Clary v. Denman Drilling Co., 1954-NMSC-105, 58 N.M. 723, 276 P.2d 499. This section must be liberally construed in favor of workman [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 (decided under former law). Modification of benefits using OSHA regulations precluded. — The use of OSHA regulations to modify an employee's workers' compensation benefits is 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, cert. denied, 108 N.M. 681, 777 P.2d 1325. Purpose of penalty system. — The percentage penalty system of this section is a recognition of and an attempt to correct the disproportion which might exist between the misconduct and the penalty. It attempts to accomplish both objectives of a compensation system; first, by providing enough compensation protection to avoid reducing the claimant to destitution; and second, by allowing a part of the loss, in the form of a fine, to fall on the wrongdoer. Baca v. Gutierrez, 1967-NMSC-021, 77 N.M. 428, 423 P.2d 617. Safety device statute 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. This section is not affected by provision limiting defenses of contributory negligence and assumed risk. Pino v. Ozark Smelting & Mining Co., 1930-NMSC-057, 35 N.M. 87, 290 P. 409. Not applicable to employers in mining industry. — The penalty provision of the Workmen's [Workers'] Compensation Act was not applicable to employers in the mining industry where specific safety regulations were prescribed by the Mine Safety Act. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080 (decided under former law). The term "industry" is not defined by specific examples of uses, thus the industry involved here is not work near a high voltage line and is not work on a high voltage line, but work exposing the decedent to the dangers of high voltage lines. Quintana v. East Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936. Compensable character of the injury is question preceding and independent of the other question, "who shall receive it?" Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909. Recovery from employer and insurer. — Provision in Workmen's [Workers'] Compensation Act (prior to 1959 amendment) authorizing additional percentage of compensation if employee's injury flowed from employer's failure to furnish safety devices authorized recovery from both employer and insurer in industries where safety devices were required by law, and authorized recovery from the employer only in industries wherein safety devices were not required by law. Janney v. Fullroe, Inc., 1943-NMSC-042, 47 N.M. 423, 144 P.2d 145. Timeliness of claim where disability paid. — Claim for workmen's [workers'] compensation plus penalty for employer's failure to supply safety devices was not prematurely filed though regular disability compensation had been paid until time claim was filed. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937. Safety device defined. — A safety device is an instrumentality that will lessen danger or secure safety, something tangible, concrete, that can be seen, touched or felt as opposed to a rule or course of conduct. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). Safety device contemplated by this section is something tangible and concrete, which can be seen, touched and described. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84. Wet floor sign is a safety device. — A wet floor sign, which is something tangible and concrete and warns of the specific danger of a slippery floor, is a safety device. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). Employer's responsibility to create a safe workplace. — Where employee nurse slipped and fell on a wet hospital floor, supreme court held that employer hospital failed in its duty to create a safe work environment where it provided wet floor signs, as safety devices, to custodial staff, but failed to ensure that the wet floor signs were properly employed, and therefore employee nurse was entitled to penalty increase in benefits. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). Not all things which promote safety can be considered as safety devices, and even those things which might be safety devices for one purpose may not be so for another purpose. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475. Requirement of "safe place to work" is not "safety device" within the meaning of this section. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84. Causal relation between injury and lack of safety device. — This section does not go to the causal relationship between the death and the accident. It goes to the causal relation between the death and the failure to supply reasonable safety devices; therefore, this section does not require the causal relation between the death and the lack of safety devices to be proved to a medical probability. Quintana v. East Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936. This section requires that the injury or death of the workman [worker] must result from the employer's failure to provide a safety device before the 10% penalty can apply. In the absence of a showing of causation, no issue of entitlement to the penalty is raised. Boughton v. Western Nuclear, Inc., 1983-NMCA-052, 99 N.M. 723, 663 P.2d 382. "Specific safety practice enjoined by law" not followed. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84. Question of safety device on appeal. — Question that if safety device was required it was duty of general contractor and not the subcontractor to supply it not having been raised in lower court, it could not be presented on appeal for the first time. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937. Supreme court review where judgment inherently defective. — Supreme court could review question of whether employee's widow was entitled to receive additional compensation by reason of the employer's failure to supply the safety devices required by law even though the assignment of error had been abandoned by the widow, as the supreme court may in its discretion review on its own motion where judgment of the trial court is inherently and fatally defective. Thwaits v. Kennecott Copper Corp., 1948-NMSC-019, 52 N.M. 107, 192 P.2d 553. Penalty for frivolous appeal. — The 10% penalty for a frivolous appeal was not applicable to an employer's and insurer's appeal from judgment in workmen's [workers'] compensation case awarding employee disability compensation plus 50% additional compensation for employer's failure to supply reasonable safety devices. (Prior to 1959 amendment.) Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937 (decided under former law). Before safety measures can be considered as safety devices, there must be some proof that the same are in general use in that industry. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475. Device must be generally used in particular industry. — For the employer to avoid liability under the act, the safety device provided must be one generally used in the particular industry, and a device less than the safety device used generally in the particular industry may not be substituted therefor. Dickerson v. Farmer's Elec. Coop., 1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037. Establishing general use. — Where one mining company used a safety electrical switch while two other companies in the same industry did not, a general use had not been established. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080. General use may be established by use of few. — The fact that there were but few engaged in the construction of sewer lines in streets carrying gas mains along which service lines were constantly encountered that had to be disconnected and reinstalled, thus creating hazard, would not preclude proof that there was a reasonable safety device employed by enough of the few so engaged to establish a general use. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711. Witnesses qualified to do so may testify directly as to general use of safety devices in an industry and are not restricted to giving particular examples thereof. Briggs v. Zia Co., 1957-NMSC-074, 63 N.M. 148, 315 P.2d 217. Territorial limitation on proof of "use". — This section reads "reasonable safety devices in general use" and does not place a territorial limitation on the proof of that "use." It would seem logical that a practice in "general use" not only locally but universally would have greater weight in showing the employer's knowledge thereof. On the other hand, a "general use" locally only would be sufficient to make an employer liable under the act if the other requirements are met. Briggs v. Zia Co., 1957-NMSC-074, 63 N.M. 148, 315 P.2d 217. Local general use over universal where different. — Where the universal "general use" differs from the local "general use" then it would be necessary to offer proof of a reasonable safety device in "general use"locally. Briggs v. Zia Co., 1957-NMSC-074, 63 N.M. 148, 315 P.2d 217. Custom or usage is matter of fact and not of opinion but proof of the fact may be established either by testimony of specific uses, or by evidence of general practice of contractors. Romero v. H.A. Lott, Inc., 1962-NMSC-037, 70 N.M. 40, 369 P.2d 777. "General use" of safety device is established where it is shown that the use of a handrail was "prevalent," "usual," "extensive though not universal" and "widespread" by those engaged in the building industry. Romero v. H.A. Lott, Inc., 1962-NMSC-037, 70 N.M. 40, 369 P.2d 777. Finding of total permanent disability. — Where there is evidence of a substantial nature that employee not only suffered an injury to his knee but there is shown a general body impairment resulting therefrom of permanent damage to the quadriceps muscle; a permanent limp which produces a pelvic tilt, resulting in back pains; when he drives a truck or climbs, his leg swells and pains him, the pain extending to his back, a finding of total permanent disability is proper. Hamilton v. Doty, 1958-NMSC-139, 65 N.M. 270, 335 P.2d 1067. Claim withdrawn where employer complied with safety act. — Consideration of claim by employee for percentage penalty on ground that potash company, as employer, failed to guard a bucket elevator adequately was properly withdrawn from jury where it was shown that the employer had met requirements of the Mine Safety Act. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080. Rearview mirror on particular construction vehicle found to be reasonable safety device. Martinez v. Zia Co., 1983-NMCA-063, 100 N.M. 8, 664 P.2d 1021. Evidence that insulated gloves were safety device for workmen who are working around such electrical lines and that they are in general use for working on such lines held sufficient. Quintana v. East Las Vegas Mun. Sch. Dist., 1971-NMCA-029, 82 N.M. 462, 483 P.2d 936. Guardrails on ore train used about mines constitute "safety devices" required by law within compensation act and an increase in the award by statutory percentage is justified where the employer fails to provide such safety device. Thwaits v. Kennecott Copper Corp., 1948-NMSC-019, 52 N.M. 107, 192 P.2d 553. Portable motor. — A motor attached to movable concrete mixer was only a part thereof and not a "portable motor" within the meaning of the exception mentioned in the section requiring electrical apparatus other than portable motors to be grounded so that additional percentage of compensation could be recovered for employee's death. Neeley v. Union Potash & Chem. Co., 1943-NMSC-010, 47 N.M. 100, 137 P.2d 312. Barricades to elevator shafts. — Statute denounces failure to furnish such safety devices as barricades or doors to elevator shafts as negligence and if employer fails to provide them or other reasonable safety devices in general use, the employer must suffer the statutory penalty. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937. II. EMPLOYEE FAILURE.Reduction of compensation for failure to use safety equipment. — Compensation of worker in potash refinery was properly reduced by 50% because he failed to use safety equipment furnished by his employer which met requirements of the Mine Safety Act. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080. Failure to use safety device. — Failure to use a device provided by employer, reasonably calculated to promote safety, though not required by law, whereby injury resulted, required percentage reduction of compensation. Pino v. Ozark Smelting & Mining Co., 1930-NMSC-057, 35 N.M. 87, 290 P. 409. Where there is evidence at trial to show that the deceased was aware that the area in which he was killed was unsafe and that he was not allowed there, and where there is substantial evidence to support the court's finding that the deceased was in an unsafe area, despite warnings and safety training, when a slab fell on him and killed him, the court's reduction of the available benefits is proper. Aragon v. Anaconda Mining Co., 1982-NMCA-076, 98 N.M. 65, 644 P.2d 1054. Pursuant to Rule 12(b), N.M.R. Civ. P. (now Rule 1-012B NMRA), when an employer raises the defense that the employee failed to use a provided safety device, the defense must be asserted in a responsive pleading or the defense is not at issue. Salazar v. City of Santa Fe, 1983-NMCA-134, 102 N.M. 172, 692 P.2d 1321, cert. quashed, 102 N.M. 225, 693 P.2d 591 (1985). Violation of company policies. — Subsection A does not provide for a reduction in benefits when an employee simply violates company policies in the absence of evidence that the violation caused the injury. Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043. Consumption of alcohol. — Reduction of an employee's benefits for consumption of alcohol was not warranted in the absence of evidence that such consumption caused his injuries. Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043. Speeding. — In light of findings that speeding was a contributing cause of the accident (and therefore the injuries), it was proper to reduce an employee's compensation award by 10%. Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043. Where employee negligent and not failure to use safety device. — Provision for reduction of compensation for failure to use safety device provided by employer was not applicable where proximate cause of employee's death in fire which started when employee attempted to load tank truck with gasoline was employee's negligent act of pulling electric switch which started pump while he still held loading hose unconnected with the tank truck, and not his failure to use the safety valve provided. Sallee v. Calhoun, 1942-NMSC-065, 46 N.M. 468, 131 P.2d 276. No contributory negligence in act except failure of workman [worker] to use device. — Contributory negligence has no place in the Workmen's [Workers'] Compensation Act unless it be in failure of workman [worker] to observe statutory safety regulation or to use a safety device furnished by employer, which results in a percentage reduction in compensation he would otherwise receive. Wright v. Schultz, 1951-NMSC-039, 55 N.M. 261, 231 P.2d 937. Issue not raised in pleadings but tried by consent. — In a hearing as to an employee's work-related hearing loss, the employer introduced evidence on the availability of particular safety devices for hearing protection. The claimant did not object; in fact, he cross-examined the witness on whether use of the devices was mandatory and the method of enforcement. Under these circumstances, this issue was tried by consent and the claimant's contention that the employer was not entitled to benefit from the defense, because it was not raised in the pleadings, was without merit. Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761, cert. denied, 107 N.M. 785, 765 P.2d 758 . Question of employee failure submitted to jury. — Question whether employee failed to make use of safety electrical switches and whether such failure caused his injury while repairing an ore bucket elevator was properly submitted to jury in action under Workmen's [Workers'] Compensation Act. Jones v. International Minerals & Chem. Corp., 1949-NMSC-015, 53 N.M. 127, 202 P.2d 1080. Defense of employee intoxication. — Where intoxication is used as a defense by insurance carrier it has burden of proving the employee's intoxication and that the intoxication was cause of the accident which resulted in employee's injury. Parr v. N.M. State Hwy. Dep't, 1950-NMSC-016, 54 N.M. 126, 215 P.2d 602. Failure to use vehicle seat belt. — Where the trial court found that the vehicle which was being driven by the plaintiff was equipped with a seat belt, which is a safety device, but that plaintiff did not have his seat belt on, the trial court accordingly reduced plaintiff's compensation by 10% for failure to use a safety device. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291. Reduction of employees' benefits for failure to use seat belts was not warranted in the absence of evidence that such failure caused their injuries. Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043. Use of improper size wrench. — Where appropriate sizes of wrenches were available and foreman was present whose duty among other things was to furnish proper wrenches upon request, claimant being aware of danger attending use of improper size wrench, the penalty provision was not applicable. Rowland v. Reynolds Elec. Eng'g Co., 1951-NMSC-046, 55 N.M. 287, 232 P.2d 689. III. EMPLOYER FAILURE.Employer is liable for penalty for failure to provide safety device in general use in an industry despite the fact that no single generally accepted method existed concerning installation of that safety device where there is a difference in the manner in which the devices used are built and installed but they are practically identical when installed and accomplish the same end result. Abeyta v. Pavletich, 1953-NMSC-068, 57 N.M. 454, 260 P.2d 366. Duty on employer to ensure safety devices are properly employed. — Where the purpose and spirit of this act is for employers to create a safe work environment for their employees, and the final responsibility and duty is on employers to furnish adequate safety devices for their workers, employers must not only provide safety devices, but must also ensure that safety devices are properly employed. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). Employer's responsibility to create a safe workplace. — Where employee nurse slipped and fell on a wet hospital floor, supreme court held that employer hospital failed in its duty to create a safe work environment where it provided wet floor signs, as safety devices, to custodial staff, but failed to ensure that the wet floor signs were properly employed, and therefore employee nurse was entitled to penalty increase in benefits. Benavides v. Eastern N.M. Med. Ctr., 2014-NMSC-037, rev'g No. 32,450, mem. Op. (N.M. Ct. App. Mar. 25, 2013) (non-precedential). General failure to provide safety devices is not enough. There must be causation between employer's negligent management in regard to safety precautions and an intentionally caused injury. The critical measure, as reflected in Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612 and Cordova v. Peavey Co., 273 F. Supp. 2d 1213, is whether the employer has, in a specific dangerous circumstance, required the employee to perform a task where the employer is or should clearly be aware that there is a substantial likelihood the employee will suffer injury or death by performing the task. The possibility that an accident might occur because of an unexpected careless act of a co-employee does not meet the Delgado v. Phelps Dodge Chino, Inc. 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148 standard. Dominguez v. Perovich, 2005-NMCA-050, 137 N.M. 401, 111 P.3d 721, cert. denied, 2005-NMSC-005, 137 N.M. 522, 113 P.3d 345. Duty on employer to furnish adequate safety device. — The legislature enacted this section as a penalty system, placing the duty on the employer to furnish adequate safety devices in general use for the use or protection of the workman [worker], and in the event of his failure to do so, making him liable to be found guilty of negligence and subject to the penalty provided. Baca v. Gutierrez, 1967-NMSC-021, 77 N.M. 428, 423 P.2d 617. The legislature enacted this section as a penalty system, placing the duty on the employer to furnish adequate safety devices in general use for the use or protection of the workman [worker]. Garza v. W.A. Jourdan, Inc., 1977-NMCA-136, 91 N.M. 268, 572 P.2d 1276, cert. denied, 91 N.M. 249, 572 P.2d 1257. Although employer is generally in another type of business, the particular activity at the time of the accident controls and employer has the duty of supplying reasonable safety devices for the work involved. Hicks v. Artesia Alfalfa Growers' Ass'n, 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475. Even where employer engaged in more than one industry. — Under this section, 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, he is 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. Where court instructed that failure of employer must be "negligent" failure, that the safety device not supplied must be a reasonable one in general use, that the resulting accident must have been the proximate cause of the employer's failure, and that the employer must have known or reasonably should have known of the safety device at the time of the accident, the court specifically spelled out negligence and its refusal to define negligence further may not be urged as error. Briggs v. Zia Co., 1957-NMSC-074, 63 N.M. 148, 315 P.2d 217. Negligence proscribed in this section is the failure to supply safety device, not the negligent disregard for the safety of employees. Baca v. Gutierrez, 1967-NMSC-021, 77 N.M. 428, 423 P.2d 617. Statute of limitations not applicable. — Although the statute of limitations, Section 52-1-31 NMSA 1978, is jurisdictional and need not be raised as an affirmative defense, it nevertheless does not apply to this statutory penalty section relating to increase or reduction in compensation for failure to supply safety devices. Garza v. W.A. Jourdan, Inc., 1977-NMCA-136, 91 N.M. 268, 572 P.2d 1276, cert. denied, 91 N.M. 249, 572 P.2d 1257. No penalty liability where co-employees negligently used safety device. — Where the employer has provided the safety device required by law and an employee is injured through the negligence of his co-employees in using the safety device, the injured employee is not entitled to a penalty increase in benefits. Jaramillo v. Anaconda Co., 1981-NMCA-030, 95 N.M. 728, 625 P.2d 1245. Devices required by Occupational Health and Safety Act regulations. — Regulations adopted under the authority of the state Occupational Health and Safety Act do not affect an employer's liability under the Workmen's [Workers'] Compensation Act, and safety devices required by such regulations are not required by law for the purposes of Subsection B. Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981). Evidence to support knowledge of employer of existing safety devices. — Where plaintiff proves that an explosion occurred in sewer pipe, killing decedent, and that previously gas leaks were discovered along the gas service lines close to the sewer pipe, and that gas was found inside the sewer pipe a few hours after explosion, the evidence is ample to entitle the jury to find that there was in common use, known to the defendants, or which in the exercise of ordinary care should have been known to them, safety devices for detecting and eliminating gases which might have accumulated in their sewer conduit in dangerous quantities, without depending solely on the sense of smell. Apodaca v. Allison & Haney, 1953-NMSC-048, 57 N.M. 315, 258 P.2d 711. Employer must have foreseen catastrophe if precautionary measures omitted. — Summary judgment is improper where there is an issue of fact as to whether the employer should have reasonably foreseen the danger and subsequent injury to the employee when particular safety devices were not used. DeArman v. Popps, 1965-NMSC-026, 75 N.M. 39, 400 P.2d 215. Increases compensation of dependents. — It is not intended that there should be compensation to dependents who are not able to make out a case which would have entitled the workman [worker] to compensation if death had not ensued. On the other hand, the failure of the employer to provide safety devices will increase the compensation of dependents as well as of the workman [worker]. Sanchez v. Bernalillo Cnty., 1953-NMSC-038, 57 N.M. 217, 257 P.2d 909. Where workman [worker] killed while installing safety device. — Since there was evidence that the general practice of the construction industry with respect to work in highly dangerous ditches is to build cribbing as the work progresses, employer was liable for penalty for failure to provide safety device where decedent workman [worker] was actually engaged in installation of such safety device at the time he was killed but the installation of cribbing had merely been started. Abeyta v. Pavletich, 1953-NMSC-068, 57 N.M. 454, 260 P.2d 366. Failure to supply reasonable safety device in general use in electrical industry is proscribed as negligence, and this section fixes the penalty therefor. Dickerson v. Farmer's Elec. Coop., 1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037. The safety device in general use in the electrical industry for the protection of its linemen was a pair of rubber insulated gloves, which meet the industry's specifications, and plaintiff's gloves, falling short of such specifications could not be classified as a safety device in "general use" in the electrical industry. Dickerson v. Farmer's Elec. Coop., 1960-NMSC-036, 67 N.M. 23, 350 P.2d 1037. Metal or plastic helmet is reasonable safety device generally provided by employers for the protection of workmen who work near overhead swinging cables, hooks or machinery such as in the present case, and the employer failed to provide such safety device; therefore, such failure requires a compensation award to be increased by 10%. Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312. Device for well driller's helper. — Addition of statutory penalty to compensation for total and permanent disability from accidental injury was proper where evidence warranted the finding that employer failed negligently to supply reasonable safety devices which were in general use for the protection of a well driller's helper. Flippo v. Martin, 1948-NMSC-060, 52 N.M. 402, 200 P.2d 366. Compliance with mining safety practices. — Delinquency of the employer with respect to specific safety practices required by mine safety statutes did not subject an employer to imposition of the penalty award under the safety statute, this section, where a workman [worker] had been injured or killed simply because the safety statute did not so provide. Montoya v. Kennecott Copper Corp., 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84 (decided under former law). Prescribing required safety devices. — The labor and industrial commission is authorized to prescribe required safety devices for each industry by proper rules and regulations and to cause the same to be filed with the librarian at the supreme court library as a public record. 1953 Op. Att'y Gen. No. 53-5796. Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442 (1967). For annual survey of New Mexico law relating to workmen's compensation, see 13 N.M.L. Rev. 495 (1983). For annual survey of New Mexico Workers' Compensation Law, see 20 N.M.L. Rev. 459 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 255, 408. Failure to use safety appliances as serious and willful misconduct, 4 A.L.R. 121, 9 A.L.R. 1377, 23 A.L.R. 1161, 23 A.L.R. 1172, 26 A.L.R. 166, 58 A.L.R. 198, 83 A.L.R. 1211, 119 A.L.R. 1409. Provision denying compensation for injury through willful failure to use guard or safety appliance, 9 A.L.R. 1377. Constitutionality of statute which makes the application of regulations affecting place or conditions of work dependent upon demand of employees, 27 A.L.R. 927. Federal Safety Appliance Act, state's power to substitute workmen's compensation for action, based on noncompliance, to recover for death of or injury to railroad employee while engaged in intrastate commerce, 104 A.L.R. 839. Additional compensation because of misconduct or violation of law by employer, insurer's liability for, 1 A.L.R.2d 407. What conduct is willful, intentional, or deliberate within Workmen's Compensation Act provision authorizing tort action for such conduct, 96 A.L.R.3d 1064. 99 C.J.S. Workmen's Compensation §§ 262, 333, 336; 100 C.J.S. Workmen's Compensation §§ 574, 612, 629; 101 C.J.S. Workmen's Compensation §§ 848, 860, 923, 944.