2023 New Mexico Statutes › Chapter 52 - Workers' Compensation › Article 1 - Workers' Compensation › Section 52-1-2 - Employers who come within act.

The state and each county, municipality, school district, drainage, irrigation or conservancy district, public institution and administrative board thereof employing workers, every charitable organization employing workers and every private person, firm or corporation engaged in carrying on for the purpose of business or trade within this state, and which employs three or more workers, except as provided in Section 52-1-6 NMSA 1978, shall become liable to and shall pay to any such worker injured by accident arising out of and in the course of his employment and, in case of his death being occasioned thereby, to such person as may be authorized by the director or appointed by a court to receive the same for the benefit of his dependents, compensation in the manner and amount at the times required in the Workers' Compensation Act.
History:
Laws 1929, ch. 113, § 2; C.S. 1929, § 156-102; Laws 1933, ch. 178, § 1; 1937, ch. 92, § 1; 1941 Comp., § 57-902; 1953 Comp., § 59-10-2; Laws 1971, ch. 261, § 1; 1973, ch. 240, § 1; 1975, ch. 284, § 1; 1987, ch. 235, § 3; 2003, ch. 259, § 2.
ANNOTATIONS
Cross references.
— For coverage by state agencies,
see
52-1-3 NMSA 1978.
For exemption of educational institutions,
see
52-1-63 NMSA 1978.
For state defense force, workers' compensation,
see
20-5-16 NMSA 1978.
For board of bar commissioners and state board of bar examiners not state agency for purposes of workmen's compensation coverage,
see
36-2-9.1 NMSA 1978.
The 2003 amendment,
effective June 20, 2003, substituted "three" for "four" near the middle of the section and inserted "in the Workers' Compensation Act" at the end of the section.
I. GENERAL CONSIDERATION.
Purpose of the workmen's [workers'] compensation legislation is to
provide a humanitarian and economical system of compensation for injured workmen, and such legislation should be given a liberal construction in favor of a claimant, but the provisions of the act may not be disregarded in the name of liberal construction.
Graham v. Wheeler
, 1967-NMSC-036, 77 N.M. 455, 423 P.2d 980.
Workmen's [Workers'] compensation is a loss-distribution mechanism with two objectives.
The first is to make the victim whole, and the second is to see, if possible, that the loss falls on the wrongdoer as a matter of simple ethics.
Baca v. Gutierrez
, 1967-NMSC-021, 77 N.M. 428, 423 P.2d 617.
Aid to construction of act.
— The maxim "expressio unius est exclusio alterius" is only an aid to construction and does not apply to provisions of Workmen's [Workers'] Compensation Act reading: "injuries sustained in extra-hazardous duties incident to the business," and "The right to the compensation provided for in this act, . . . for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases" when the conditions and circumstances stated and required by Section 52-1-9 NMSA 1978, are present.
Wilson v. Rowan Drilling Co.
, 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365 (decided under former law).
Liberal construction rule applies to law, not evidence.
— The rule of liberal construction of the Workmen's [Workers'] Compensation Act applies to the law, not to the evidence offered to support a claim.
Brown v. General Ins. Co. of Am.
, 1962-NMSC-040, 70 N.M. 46, 369 P.2d 968.
New Mexico's workmen's [workers'] compensation statute is based on extrahazardous occupations and pursuits.
Hayes v. Ampex Corp.
, 1973-NMCA-105, 85 N.M. 444, 512 P.2d 1280,
overruled on other grounds by
Dupper v. Liberty Mut. Ins. Co.
, 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.
No express consent by state to be sued in workmen's [workers'] compensation proceeding
involving the state penitentiary and the consent is not to rest on implication.
Day v. Penitentiary of N.M.
, 1954-NMSC-064, 58 N.M. 391, 271 P.2d 831.
A suit may not be brought against a state institution
under the Workmen's [Workers'] Compensation Act without the express consent of the state.
McWhorter v. Board of Educ.
, 1958-NMSC-015, 63 N.M. 421, 320 P.2d 1025.
School district is an institution or agency of the state,
and as such is immune from suit without the state's consent.
McWhorter v. Board of Educ.
, 1958-NMSC-015, 63 N.M. 421, 320 P.2d 1025.
This act becomes operative without affirmative action by employer or employee
as soon as the employment begins, unless rejected by written contract or notice.
Jones v. George F. Getty Oil Co.
, 92 F.2d 255 (10th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 644, 82 L. Ed. 1106 (1938).
Where petition for damages brings action within act.
— Although a petition for damages for injuries sustained during employment does not contain an affirmative allegation of how many workmen are employed by the employer, it brings the action within the compensation act where it alleges the injuries were received by a fall from a pole 30 feet from the ground.
Jones v. George F. Getty Oil Co.
, 92 F.2d 255 (10th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 644, 82 L. Ed. 1106 (1938).
When number of workers calculated.
— If an employer has once regularly employed enough workers to come under the Act, he remains there even when the number employed may temporarily fall below the minimum.
Garcia v. Watson Tile Works, Inc.
, 1990-NMCA-126, 111 N.M. 209, 803 P.2d 1114.
Out-of-state workers of employers.
— Under this section all workers employed by a private employer "engaged in carrying on for the purpose of business or trade within this state," wherever employed, must be considered in determining whether the employer is subject to the act. Thus an "out-of-state employer who employed fewer than three workers within the State of New Mexico could still be subject to liability under the act.
Hammonds v. Freymiller Trucking, Inc.
, 1993-NMCA-030, 115 N.M. 364, 851 P.2d 486.
Directors and officers as "workers".
— Where corporate payments to directors and officers represented repayment of loans, not wages or salary, the directors and officers were not "workers" as contemplated by this section.
Garcia v. Watson Tile Works, Inc.
, 1990-NMCA-126, 111 N.M. 209, 803 P.2d 1114.
Dismissal on motion where only question of law.
— Where the pleadings as well as documentary evidence indicated that the employer of an injured minor employee qualified under Workmen's [Workers'] Compensation Act and that the injured employee who had not given notice of election not to become subject to the act had received compensation, the case could be dismissed on motion since only questions of law were presented.
Benson v. Export Equip. Corp.
, 1945-NMSC-044, 49 N.M. 356, 164 P.2d 380.
Acts of employer as evidence to predicate award.
— Act of employer in making out an accident report and the payment of compensation to the decedent until shortly before his death constitutes sufficient evidence upon which to predicate award of compensation for injury, and for resulting death as well, when coupled with the evidence of medical witnesses in the case that the injury would aggravate subsequent illness and hasten death.
Gilbert v. E.B. Law & Son, Inc.
, 1955-NMSC-083, 60 N.M. 101, 287 P.2d 992.
Employer must show valid employment contract.
— If an employer seeks to avail itself of the Workmen's [Workers'] Compensation Act as a bar to a common-law action, then it must show a valid contract of employment between it and the injured employee.
Howie v. Stevens
, 1984-NMCA-052, 102 N.M. 300, 694 P.2d 1365, cert. quashed, 102 N.M. 293, 694 P.2d 1358 (1985).
Self-serving declaration of deceased workman [worker].
— While recognizing the trend toward a greater admissibility of declarations of deceased persons where the same information cannot be obtained in a more purified or authentic form, the self-serving declarations of a decedent in a workmen's [workers'] compensation case will not be admitted on the ground of necessity alone even though it was the only available evidence bearing on the issue.
Brown v. General Ins. Co. of Am.
, 1962-NMSC-040, 70 N.M. 46, 369 P.2d 968.
Evidence of strenuous training course admitted.
— Trial court did not abuse its discretion in admitting testimony relating to strenuousness of training course decedent was taking at the time of his death, offered by employee who had taken the course under sufficiently similar circumstances and conditions.
Brown v. General Ins. Co. of Am.
, 1962-NMSC-040, 70 N.M. 46, 369 P.2d 968.
Question of compensable injury not affected by workman [worker] being more readily susceptible.
— Although a workman [worker] may be more readily susceptible to injury than other workmen similarly employed, by reason of a preexisting physical condition, the question whether the injury is compensable is not affected thereby.
Gilbert v. E. B. Law & Son, Inc.
, 1955-NMSC-083, 60 N.M. 101, 287 P.2d 992.
Employee who has preexisting physical weakness or disease may suffer compensable injury
if the employment contribution can be found either in placing the employee in a position which aggravates the danger due to the idiopathic condition, or where the condition is aggravated by strain or trauma due to the employment requirements.
Berry v. J.C. Penney Co.
, 1964-NMSC-153, 74 N.M. 484, 394 P.2d 996.
Violation of specific instruction bars recovery.
— Where the trial found that the injury to the plaintiff did not arise out of his work, but did occur at a time when he was using a machine tool in violation of and contrary to instructions given him by his supervisor, benefits under this act were properly denied, because violation of specific instructions which limit the scope or sphere of work which an employee is authorized to do bars recovery of workmen's [workers'] compensation for an injury so sustained.
Witt v. Marcum Drilling Co.
, 1964-NMSC-029, 73 N.M. 466, 389 P.2d 403.
Insurer liable where agent accepted application after effective date.
— Where employer applied for compensation insurance from "December 5, 1937 to December 5, 1938," and agent of insurer accepted application on December 8, as of December 5, 1937, and an employee was killed on December 6, 1937 and suit was filed for compensation by his dependents, and insurer denied liability because of employer's willful, intentional and fraudulent concealment of facts of death, the court held that such evidence was insufficient to warrant its finding that the insurer was not liable for compensation for death of said employee.
Points v. Wills
, 1939-NMSC-041, 44 N.M. 31, 97 P.2d 374.
Availability of common-law defenses for employer.
— Under the Workmen's [Workers'] Compensation Act, where an employer is subject to the act and has failed to comply therewith, an employee who sustains compensable injuries is afforded one of two remedies: (1) maintain a civil action against the employer for damages suffered or (2) in lieu of a common-law action, apply to the district court for compensation benefits under the act. In both instances, the employer is denied the common-law defenses of contributory negligence, assumption of risk and the fellow servant rule. However, the employer is not subject to the act, the act itself would not apply to the employer and an employer would be entitled to all common-law defenses in a common-law action for negligence brought by an employee.
Arvas v. Feather's Jewelers
, 1978-NMCA-075, 92 N.M. 89, 582 P.2d 1302.
Findings supported by substantial evidence.
— If findings that plaintiff was not performing any service for employer at the time of the accident are supported by substantial evidence, then plaintiffs must fail in this appeal. By substantial evidence is meant that evidence which is acceptable to a reasonable mind as adequate support for a conclusion.
Young v. Signal Oilfield Serv., Inc.
, 1969-NMCA-125, 81 N.M. 67, 463 P.2d 43.
II. EMPLOYMENT COVERED.
Workman [Worker] for conservancy district covered.
— Workman [Worker] engaged in general work of installing culverts in ditches, fixing water gates, repairing bridges, repairing dikes and filling sand bags for a conservancy district is covered under the Workmen's [Workers'] Compensation Act.
Armijo v. Middle Rio Grande Conservancy Dist.
, 1955-NMSC-033, 59 N.M. 231, 282 P.2d 712.
Only injuries "arising out of and in course of" employment are compensable.
Martinez v. Fidel
, 1956-NMSC-023, 61 N.M. 6, 293 P.2d 654.
Under the express language of this section it is not enough that an injury "arose in the course of employment," it must "arise out of" as well as "in the course of" the employment.
Berry v. J.C. Penney Co.
, 1964-NMSC-153, 74 N.M. 484, 394 P.2d 996.
Out of and in course of employment.
— "Out of" course of employment points to the cause or source of the accident, while "in the course of" relates to time, place and circumstances.
Martinez v. Fidel
, 1956-NMSC-023, 61 N.M. 6, 293 P.2d 654.
Injury is said to arise in course of employment when
it takes place within the period of the employment, at a place where the employee reasonably may be, and while he is fulfilling his duties or engaged in doing something incidental thereto.
Edens v. N.M. Health & Soc. Servs. Dep't
, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.
Scope of employment is to be determined from directions of employer,
and not from any agreement between the employer and her fellow employees; thus, the fact that an employer agreed with her fellow employees to form a car pool at a shopping center before proceeding to a required conference was of no consequence to the scope of her employment.
Edens v. N.M. Health & Soc. Servs. Dep't
, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.
Where facts undisputed, employment question of law.
— Where the historical facts of the case are undisputed, the question whether the accident arose out of and in the course of the employment is a question of law.
Edens v. N.M. Health & Soc. Servs. Dep't
, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.
Injury not in course of employment where for personal benefit alone.
— The injury received in altercation with guard at gate of job site may have arisen out of his employment but was not sustained in the course of his employment; since claimant's purpose in returning to the site to obtain a pay advance was for his personal benefit alone and not designed to further the employer's business.
Fautheree v. Insulation & Specialties, Inc.
, 1960-NMSC-056, 67 N.M. 230, 354 P.2d 526.
No sure test for determining whether employee or independent contractor.
— There is no single or sure criterion affording a test of when the relationship is that of employee and when that of an independent contractor, and "a fact found controlling in one combination may have a minor importance in another."
Nelson v. Eidal Trailer Co.
, 1954-NMSC-051, 58 N.M. 314, 270 P.2d 720.
Manufacturer not responsible for compensation for death of independent contractor's employee.
— Where contract between truck loader and manufacturing company left the time and manner of performance and the hiring and payment of extra help to the discretion of the loader, loader was an independent contractor, and manufacturer was not liable for workmen's [workers'] compensation for death of loader's employee.
Nelson v. Eidal Trailer Co.
, 1954-NMSC-051, 58 N.M. 314, 270 P.2d 720.
Owner of gravel pit.
— Where owner of gravel pit contracted with third party for drilling holes and placing dynamite and third party employed claimant, who was injured in operation and third party made his own arrangements with his employees and was paid flat daily rate under contract, third party was an independent contractor and claimant was not entitled to compensation from land owner.
Gober v. Sanders
, 1958-NMSC-041, 64 N.M. 66, 323 P.2d 1104.
Professional classified as independent contractor or "employee".
— A professional giving full-time, exclusive services to a business should not be excluded from the definition of "employee" under the Workers' Compensation Act simply because no one in the business has the skills to oversee the details of the professional's work. Thus where the workers' compensation judge did not make findings with regard to whether at the time of the accident the claimant, an accountant performing services for the defendant, was potentially available to other clients or was committed to serving defendant exclusively for the foreseeable future, the case was remanded for further findings and conclusions.
Whittenberg v. Graves Oil & Butane Co.
, 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, cert. denied, 113 N.M. 352, 826 P.2d 573 (1992).
Worker, whose means and method of work not controlled, deemed independent contractor.
— The trial court correctly determined that plaintiff was an independent contractor where defendant had the power to control the results of plaintiff's work, but did not have the right to control the means and methods of plaintiff's work, plaintiff was not required to work any specified hours, nor was there a requirement as to who was to perform specific tasks.
Tafoya v. Casa Vieja, Inc.
, 1986-NMCA-079, 104 N.M. 775, 727 P.2d 83.
Independent truck contractor not within act.
— A trucker engaged by a gin company for hauling seed to designated places and who hired and paid for any extra help he employed on his own was an independent contractor and did not fall within the scope of the Workmen's [Workers'] Compensation Act as an "employee."
Bland v. Greenfield Gin Co.
, 1944-NMSC-021, 48 N.M. 166, 146 P.2d 878.
Employee may be discharged at will.
— Where a truck driver who is employed to haul logs to railroad transportation, at a price per thousand timber foot, may be discharged at will, he is an employee and not an independent contractor, although he has the control of size of load, time for working, and choice of routes.
Burruss v. B.M.C. Logging Co.
, 1934-NMSC-023, 38 N.M. 254, 31 P.2d 263.
Work need not be in New Mexico.
— Claim that in order for employment relationship to exist in New Mexico the claimant must work for the employer in New Mexico before being assigned to work elsewhere is without merit.
Franklin v. Geo. P. Livermore, Inc.
, 1954-NMSC-054, 58 N.M. 349, 270 P.2d 983.
Special employer.
— The special employer is liable for workers' compensation when the employee has made a contract of hire, express or implied, with the special employer. The work being done is essentially that of the special employer; and the special employer has the right to control the details of the work.
Rivera v. Sagebrush Sales, Inc.
, 1994-NMCA-119, 118 N.M. 676, 884 P.2d 832, cert. denied, 118 N.M. 585, 883 P.2d 1282;
Hamberg v. Sandia Corp.
, 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209.
Special errand rule applicable where supervisors requested car pool.
— Where deceased employee who, along with three others, was ordered by the defendant-employer to attend a special two-day health and social services department meeting (all of whom had been requested by their respective supervisors to form a car pool and to return overnight to their home town between the two sessions in order to save fuel and reduce travel costs), picked up the three other employees at an agreed-on meeting place, a parking lot, and proceeded in her car to the meeting, and at the close of the first day's session, after discharging her three colleagues in the same parking lot, drove out of the parking lot and immediately thereafter was involved in the accident which resulted in her death, the supreme court held that the special errand rule was applicable in that deceased was on a special mission for her employer and was within the scope of her employment from the moment she left home until the moment she would have returned home at the end of the day, and therefore, her fatal injuries arose out of and in the course of her employment, and the "going and coming" rule was inapplicable.
Edens v. N.M. Health & Soc. Servs. Dep't
, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.
The special errand rule states that
when an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
Edens v. N.M. Health & Soc. Servs. Dep't
, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.
Novice at a monastery
was not a "worker" for purposes of workers' compensation.
Joyce v. Pecos Benedictine Monastery
, 1995-NMCA-054, 119 N.M. 764, 895 P.2d 286.
Where an employer employs four (now three) or more persons
in the business he was required to carry workmen's [workers'] compensation insurance or to exempt himself from the Workmen's [Workers'] Compensation Act.
Castillo v. Juarez
, 1969-NMCA-031, 80 N.M. 196, 453 P.2d 217.
Employer covered where employees for all proprietorships totaled more than three.
— Defendant who solely owned and operated three businesses as sole proprietorships, and who cumulatively employed a total of four (now three) or more employees in those three sole proprietorships, was an employer under this act, even though the business for which claimant worked did not employ four employees.
Clark v. Electronic City
, 1977-NMCA-048, 90 N.M. 477, 565 P.2d 348, cert. denied, 90 N.M. 636, 567 P.2d 485.
School and conservancy district are included in Workmen's [Workers'] Compensation Act
when engaged in an extrahazardous occupation or pursuit.
Armijo v. Middle Rio Grande Conservancy Dist.
, 1955-NMSC-033, 59 N.M. 231, 282 P.2d 712 (decided under former law).
But no authority to sue state.
— Although a school district is subject to the provisions of the Workmen's [Workers'] Compensation Act, there is no authority to support the contention that a suit can be brought without the consent of the state.
McWhorter v. Board of Educ.
, 1958-NMSC-015, 63 N.M. 421, 320 P.2d 1025.
Mere fact that defendant is a "conservancy district,"
as the term is used in this section, does not subject it to the act, but liability only attaches when employers are engaged in "occupations or pursuits declared extrahazardous" by 59-10-10, 1953 Comp. (now repealed).
Rumley v. Middle Rio Grande Conservancy Dist.
, 1936-NMSC-023, 40 N.M. 183, 57 P.2d 283 (decided under former law).
Employees of state highway department are entitled to benefits
under this act.
State ex rel. Md. Cas. Co. v. State Hwy. Comm'n
, 1934-NMSC-062, 38 N.M. 482, 35 P.2d 308;
Cuellar v. American Employers' Ins. Co.
, 1932-NMSC-018, 36 N.M. 141, 9 P.2d 685.
Injured work-release program prisoner deemed "employee".
— A prisoner who voluntarily participated in a work-release program and was injured while under the direction of a private business was an "employee" of that business and thus entitled to workers' compensation benefits.
Benavidez v. Sierra Blanca Motors
, 1995-NMCA-140, 120 N.M. 837, 907 P.2d 1018,
rev'd in part on other grounds
, 1996-NMSC-045, 122 N.M. 209, 922 P.2d 1205.
Return to route after major deviation not necessarily return to scope of employment.
— 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, it can be said that 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.
Carter v. Burn Constr. Co.
, 1973-NMCA-156, 85 N.M. 27, 508 P.2d 1324, cert. denied, 85 N.M. 5, 508 P.2d 1302.
Where decedent spent the four and one-half hours drinking beer, playing pool and conversing with his friends at lounge, such excursion constitutes a major deviation and therefore injuries sustained upon returning to the route of the business trip were not compensable.
Carter v. Burn Constr. Co.
, 1973-NMCA-156, 85 N.M. 27, 508 P.2d 1324, cert. denied, 85 N.M. 5, 508 P.2d 1302.
However, minor deviations treated differently.
— An employee, who while on a trip in the course of his employment makes a minor deviation for personal reasons, is outside the scope of his employment during the deviation. However, once he returns to the route of the business trip he reenters the scope of his employment and responsibility attaches; however, very minor deviations are disregarded or considered as part of the employment agreement.
Carter v. Burn Constr. Co.
, 1973-NMCA-156, 85 N.M. 27, 508 P.2d 1324, cert. denied, 85 N.M. 5, 508 P.2d 1302.
Injuries compensable where employer furnishes transportation to and from work.
— Ordinarily injuries sustained by an employee while on his way to work or after leaving are not compensable; however, one exception to the rule is where the employer agrees to and does furnish transportation to and from work.
Carter v. Burn Constr. Co.
, 1973-NMCA-156, 85 N.M. 27, 508 P.2d 1324, cert. denied, 85 N.M. 5, 508 P.2d 1302.
Citizen employed by deputy sheriff not employee of county.
— A deputy sheriff is without power to hire a citizen to direct traffic and where such citizen is killed by an automobile while so doing, no recovery may be had for his death under the Workmen's [Workers'] Compensation Act on the ground that he was an employee of the county.
Eaton v. Bernalillo Cnty.
, 1942-NMSC-040, 46 N.M. 318, 128 P.2d 738.
Implied authority of foreman related to drilling duties only.
— Where foreman lacked authority from the company to deliver the car back to Farmington and employee per request of foreman helped in return of car, that the foreman of the crew had implied authority to direct the crew to do those things which were required of them was held immaterial as this related to their duties in drilling the well, and had nothing to do with the disposition of the shuttle car; therefore, accident did not arise out of and in the course of claimant's employment but was incidental to assisting foreman in actions taken in an individual capacity.
Covington v. Rutledge Drilling Co.
, 1962-NMSC-155, 71 N.M. 120, 376 P.2d 180.
Injuries arising out of risks or conditions personal
and not out of a risk peculiar to the employment, do not "arise out of" the employment unless the employment contributes to the risk or aggravates the injury, and those injuries within the category of risks personal to the claimant are universally held to be noncompensable.
Berry v. J.C. Penney Co.
, 1964-NMSC-153, 74 N.M. 484, 394 P.2d 996.
Accident when employee not doing anything for employer not compensable.
— An accident occurring upon a public way, when the employee is not doing anything for the employer by reason of the employment, is not compensable "because not arising out of his employment," and not occurring in the "course of his employment," unless the negligence of the employer was the proximate cause.
Martinez v. Fidel
, 1956-NMSC-023, 61 N.M. 6, 293 P.2d 654.
Truck driver who developed pneumonia as result of defective truck,
which discharged excessive amount of smoke and gases, furnished by employer, was entitled to compensation under this act.
Stevenson v. Lee Moor Contracting Co.
, 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.
Test in determining when one is employed as farm laborer to be covered
by this act is the general nature and purpose of his employment and not the particular items of work.
Koger v. A.T. Woods, Inc.
, 1934-NMSC-020, 38 N.M. 241, 31 P.2d 255.
Employment in timber cutting.
— An accident to a workman [worker] employed in a forest, caused by a falling tree, and resulting in his death, arose out of his employment.
Merrill v. Penasco Lumber Co.
, 1922-NMSC-008, 27 N.M. 632, 204 P. 72 (decided under former law).
III. INJURY BY ACCIDENT.
Intentional tort of co-worker.
— When a co-worker commits an intentional tort against another worker, such an incident will be considered accidental, and within the scope of the Workers' Compensation Act, where the employer did not intentionally or willfully engage in conduct leading to the incident resulting in the worker's injury, or where the co-worker's intentional conduct cannot be imputed to the employer under the alter ego theory.
Griego v. Patriot Erectors, Inc.
, 2007-NMCA-08, 141 N.M. 844, 161 P.3d 889, cert. denied, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459.
Accidental injury to permit recovery.
— This section requires that there must be an injury caused by accident, an "accidental injury," to permit recovery.
Aranbula v. Banner Mining Co.
, 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867.
Nature of accidental injury.
— Accidental injuries may arise without the usually attending factors of narrow limits of time for the beginning and completion of the injury, or without unusual, or extraordinary conditions of employment not common to others, but there must be an accident, as distinguished from common occupational, or industrial, sickness or disease.
Aranbula v. Banner Mining Co.
, 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867.
Term "accidental injury" as used in Workmen's [Workers'] Compensation Act
should be liberally construed in favor of the compensation claimant; "injury by accident" has been construed to mean nothing more than an accidental injury or an "accident" as the word is ordinarily used, and denotes an unlooked for mishap or some untoward event which is not expected or designed; the meaning of "accident" is not limited to sudden injuries, nor is its meaning limited by any time test; the unintended result of an intentional act of the person injured may be an "accident" within the meaning of our compensation act.
Gilbert v. E.B. Law & Son, Inc.
, 1955-NMSC-083, 60 N.M. 101, 287 P.2d 992.
In sense of this section, accidental injury or accident is
an unlooked for mishap, or untoward event which is not expected or designed.
Ortiz v. Ortiz & Torres Dri-Wall Co.
, 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
It is unnecessary that workman [worker] be subjected to unusual or extraordinary condition
or hazard not usual to his employment for an injury to be an accidental injury under the compensation act.
Ortiz v. Ortiz & Torres Dri-Wall Co.
, 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
The term "injury by accident"
as employed in this section means nothing more than an accidental injury, or an accident, as the word is ordinarily used; it denotes an unlooked for mishap, or an untoward event which is not expected or designed.
Aranbula v. Banner Mining Co.
, 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867 (decided under former law).
The "by accident" requirement is now deemed satisfied in most jurisdictions either
if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant's duties. Accordingly, if the strain of claimant's usual exertions causes collapse from back weakness, the injury is held accidental.
Ortiz v. Ortiz & Torres Dri-Wall Co.
, 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
Accident must result from risk incident to employment.
— Before an injury may be said to be compensable as "arising out of employment," the accident causing the injury must result from a risk reasonably incident to the employment; a risk common to the public generally and not increased in any way by the circumstances of the employment is not covered by the act; but it is not necessary that a workman [worker] be subjected to an unusual or extraordinary condition, not usual to his employment, for an injury sustained to be termed an accidental one under the law.
Gilbert v. E.B. Law & Son, Inc.
, 1955-NMSC-083, 60 N.M. 101, 287 P.2d 992.
Causal connection between employment and accident.
— Under this section, there must not only have been a causal connection between the employment and the accident, but the accident must result from a risk incident to the work itself.
Berry v. J.C. Penney Co.
, 1964-NMSC-153, 74 N.M. 484, 394 P.2d 996.
Where fall not result of risk involved in employment.
— Claimant's idiopathic fall on employer's concrete floor and injury were not the result of a risk involved in his employment or incident to it.
Luvaul v. A. Ray Barker Motor Co.
, 1963-NMSC-152, 72 N.M. 447, 384 P.2d 885.
Malfunction of body as accidental injury.
— Based upon the reasoning of these cases, a malfunction of the body itself, such as a fracture of the disc or tearing a ligament or blood vessel, caused or accelerated by doing work required or expected in employment, is an accidental injury within the meaning and intent of the compensation act.
Ortiz v. Ortiz & Torres Dri-Wall Co.
, 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.
Compensation denied where present condition natural progression of preexisting one.
— Compensation denied as claimant did not suffer a myocardial infarction while working, as his present condition is the result of the natural progression of his preexisting heart condition.
Thompson v. Banes Co.
, 1962-NMSC-143, 71 N.M. 154, 376 P.2d 574.
Silicosis not accident.
— While workmen's [workers'] compensation acts are given a liberal interpretation in favor of the workman [worker], silicosis does not fall within the purview of an injury by accident.
Aranbula v. Banner Mining Co.
, 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867.
Silicosis is occupational disease.
— Silicosis acquired over a period of years and without the element of excessive exposure and sudden and unexpected occurrence of injury or illness is an occupational disease and not an injury by accident.
Aranbula v. Banner Mining Co.
, 1945-NMSC-032, 49 N.M. 253, 161 P.2d 867.
Injury may result from inhaling gases for days.
— An injury, to be compensable under this act, need not result momentarily. It may be the result of inhaling gases for hours or days.
Stevenson v. Lee Moor Contracting Co.
, 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.
Contract with employees to operate independently.
— All employers covered by Workmen's [Workers'] Compensation Act operate under it unless by contract with employees they show intention to operate independently of it. 1931 Op. Att'y Gen. No. 31-213.
Contractor with less than three employees.
— Except as provided in this section, a contractor is not subject to the Workmen's [Workers'] Compensation Act though engaged in extrahazardous activity unless he expressly elects to come under it, if he has less than four (three) employees. 1945 Op. Att'y Gen. No. 45-4711 (rendered under former law).
Certain governmental units may be subject to this act if
engaged in extrahazardous occupations or pursuits and if the employer and employees have either expressly or impliedly accepted and agreed to be bound by the act. 1961 Op. Att'y Gen. No. 61-16 (rendered under former law).
State department is not subject to the Workmen's [Workers'] Compensation Act
as to office employees and others in nonhazardous occupation and may not elect to come under the act or to such employees. 1952 Op. Att'y Gen. No. 52-5598 (rendered under former law).
Applies to state educational institutions.
— The Workmen's [Workers'] Compensation Act applies to state educational institutions whether employees are working on a farm or ranch, custodians or teaching in classrooms where dangerous substances are used. 1931 Op. Att'y Gen. No. 31-299.
Municipal board of education is not liable under Workmen's [Workers'] Compensation Act.
1957 Op. Att'y Gen. No. 57-310.
Workmen's [Workers'] compensation insurance may be carried by board of education.
1957 Op. Att'y Gen. No. 57-310.
State and political subdivisions.
— It was apparent legislative intention that the state and its political subdivisions should come within provisions of the Workmen's [Workers'] Compensation Act if it employs any workmen at all in dangerous pursuits when legislature deleted the words "As many as four" by amendment in 1933. 1943 Op. Att'y Gen. No. 43-4224.
Employees of state insane asylum,
not engaged in "extrahazardous occupation," may be brought under the law by mutual agreement. 1931 Op. Att'y Gen. No. 31-90 (rendered under former law).
Members of voluntary fire department
without some contract of employment with city are not entitled to benefits of Workmen's [Workers'] Compensation Act. 1932 Op. Att'y Gen. No. 32-477.
Mounted patrol trooper not under color of employment agreement.
— A trooper or officer of the New Mexico mounted patrol, in carrying out duties as provided, is without question engaging in extrahazardous activities. However, such extrahazardous duty is not being performed under any color of an employment agreement. 1957 Op. Att'y Gen. No. 57-41 (rendered under former law).
Except while under direct supervision of state police officer.
— Workmen's [Workers'] compensation coverage includes New Mexico mounted patrol members should they become injured while working under the direct supervision of a state police officer. 1958 Op. Att'y Gen. No. 58-218.
Compensation for layman acting as posseman.
— There can be no question that any citizen, whether he be a sheriff's posseman, layman or of any other status, who would be legally subject to an assistance call of posse comitatus and who was indeed duly and legally so called, and who in the course of such duties was injured, would be included in workmen's [workers'] compensation. 1958 Op. Att'y Gen. No. 58-218.
While interstate truckers need not carry workmen's [workers'] compensation,
the workmen [workers] and employer may elect to come under the law by voluntary agreement. 1937 Op. Att'y Gen. No. 37-1511.
Law reviews.
— For note, "Harmon v. Atlantic Richfield Co.: The Duty of an Employer to Provide a Safe Place to Work for the Employee of an Independent Contractor," see 12 N.M.L. Rev. 559 (1982).
For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).
For note, "Trends in New Mexico Law 1994-95: Workers' Compensation Law New Mexico Clarifies the Meaning of a Special Employer from a Statutory Employer: Rivera v. Sagebrush Sales, Inc.," see 26 N.M. L. Rev. 655 (1996).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
82 Am. Jur. 2d Workers' Compensation §§ 44, 47, 116 to 136, 157.
General or special employer's liability for compensation to injured employee, 3 A.L.R. 1181, 34 A.L.R. 768, 58 A.L.R. 1467, 152 A.L.R. 816.
Application to employees engaged in farming, 7 A.L.R. 1296, 13 A.L.R. 955, 35 A.L.R. 208, 43 A.L.R. 954, 107 A.L.R. 977, 140 A.L.R. 399.
Property-owner's liability for injury to workmen engaged in building or repairing structure under provisions as to casual employment, 15 A.L.R. 735, 33 A.L.R. 1460, 60 A.L.R. 1195, 107 A.L.R. 934.
Construction of provisions directed against noninsuring or self-insuring employers, 18 A.L.R. 267.
General discussion of the nature of the relationship of employer and independent contractor, 19 A.L.R. 226.
Circumstances under which existence of relationship of employer and independent contractor is predicable, 19 A.L.R. 1168.
Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684.
Window washer as casual employee, 28 A.L.R. 624.
Workmen's compensation: applicability to charitable institutions, 30 A.L.R. 600.
Concurrent or joint employment by several, 30 A.L.R. 1000, 58 A.L.R. 1395.
Effect of kinship or family relationship between parties, 33 A.L.R. 585.
Workmen's compensation: what is casual employment, 33 A.L.R. 1452, 60 A.L.R. 1195, 107 A.L.R. 934.
Teamster as independent contractor under Workmen's Compensation Act, 42 A.L.R. 607, 43 A.L.R. 1312, 120 A.L.R. 1031.
Independence of contract considered with relation to scope and construction of statutes, 43 A.L.R. 346.
Ownership of leased or rented property as constituting business, trade or occupation within Workmen's Compensation Act, 50 A.L.R. 1176.
Constitutionality of provisions applicable to public officers or employees, 53 A.L.R. 1290.
Municipal corporation as an employer, 54 A.L.R. 788.
One doing work under a cost plus contract as an independent contractor, or a servant or an agent, 55 A.L.R. 291.
One in general employment of contractee, but who at time of accident was assisting or cooperating with, an independent contractor, as employee of former or latter for the time, 55 A.L.R. 1263.
Whether character of work undertaken is part or process of principal's trade or business within Workmen's Compensation Act, 58 A.L.R. 882, 105 A.L.R. 580.
Nurse as independent contractor or servant, 60 A.L.R. 303.
Applicability of workmen's compensation to injuries sustained while flying, 62 A.L.R. 229.
Right as against vehicle owner, of one not in his general employment, injured while assisting in remedying conditions due to accident to automobile or truck in highway, 72 A.L.R. 1284.
One employed by servant in emergency as servant of the master, 76 A.L.R. 971.
Independent contractors and Workmen's Compensation Act, 78 A.L.R. 493.
Helper, assistant or substitute for an employee as himself an employee, 80 A.L.R. 522.
Continuity and duration of employment required by provision making applicability of act depend on number of persons employed, 81 A.L.R. 1232.
"Seasonal" employment within provisions of Workmen's Compensation Act, 93 A.L.R. 308.
Construction and application of term "business" as used in provision of Workmen's Compensation Acts, 106 A.L.R. 1502.
Evasion or avoidance of requirements of Workmen's Compensation Act, effect of intent as to, on status of independent contractor as distinguished from employee, 107 A.L.R. 855.
National bank or receiver thereof as within state Workmen's Compensation Act, 113 A.L.R. 1454.
Federal property within state, injury occurring on, or in connection with contracts in relation to, applicability of state Workmen's Compensation Act, 153 A.L.R. 1050.
Musicians or other entertainers as employees of hotel or restaurant in which they perform, within Workmen's Compensation Act, 158 A.L.R. 915, 172 A.L.R. 325.
Coverage of industrial or business employee when performing under orders, services for private benefit of employer or superior, or officer, representative or stockholder of corporate employer, 172 A.L.R. 378.
Constitutional or statutory provision referring to "employees" as including public officers, 5 A.L.R.2d 415.
Voluntary payment of compensation under statute of one state as bar to claim or ground for reduction of claim of compensation under statute of another state, 8 A.L.R.2d 628.
Status of gasoline and oil distributor or dealer, as agent, employee or independent contractor or dealer, 83 A.L.R.2d 1282.
Workers' compensation immunity as extending to one owning controlling interest in employer corporation, 30 A.L.R.4th 948.
Employee's injuries sustained in use of employer's restroom as covered by workers' compensation, 80 A.L.R.5th 417.
99 C.J.S. Workmen's Compensation §§ 37 to 58.