2023 New Mexico Statutes › Chapter 52 - Workers' Compensation › Article 1 - Workers' Compensation › Section 52-1-19 - Injury by accident; course of employment.

As used in the Workers' Compensation Act, 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 Comp., § 59-10-12.12, enacted by Laws 1975, ch. 284, § 6; 1986, ch. 22, § 3; 1987, ch. 235, § 9.
ANNOTATIONS
Repeals and reenactments.
— Laws 1975, ch. 284, § 6, repealed former 59-10-12.12, 1953 Comp., relating to injuries sustained in extra-hazardous occupations or pursuit, and enacted a new 59-10-12.12, 1953 Comp.
Compiler's notes.
— Laws 1987, ch. 235, § 54A, effective June 19, 1987, repealed Laws 1986, ch. 22, § 105 which had formerly repealed this section effective July 1, 1987.
I. GENERAL CONSIDERATION.
Traveling employee exception.
— A traveling employee is defined as an employee who is taken away from home by his or her employment and who of necessity must eat and sleep away from home in order to further the employer's business and who may be considered to be in the continuous employment of the employer, day and night.
Begay v. Consumer Direct Personal Care
, 2015-NMCA-025, cert. denied, 2015-NMCERT-002.
Where worker's employment involved providing personal care services, through medicaid, to her mentally disabled son, worker's employment did not require her to be away from home as part of her employment, and work-related travel actually ran contrary to the individual plan of care which she developed for her son, which allowed for incidental travel, but specified that services should be provided in the patient's residence; the traveling employee exception to the going and coming rule was inapplicable.
Begay v. Consumer Direct Personal Care
, 2015-NMCA-025, cert. denied, 2015-NMCERT-002.
Aid to construction.
— The maxim "expressio unius est exclusio alterius," was only an aid to construction and did not apply to provision 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 were present.
Wilson v. Rowan Drilling Co.
, 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365 (decided under former law).
Question of law where facts undisputed.
— 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.
Scope of employment is to be determined from directions of employer,
and not from any agreement between the employee and her fellow employees; thus, the fact that an employee 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.
Going to work where accident caused by negligent on-duty coworker.
— Worker's compensation was the exclusive remedy for a worker who was injured on his way to work in a traffic accident that occurred half an hour before his shift began, two miles away from his employer's premises, as a direct result of an on-duty coworker's negligent driving of a vehicle owned by the common employer.
Espinosa v. Albuquerque Publ'g Co.
, 1997-NMCA-072, 123 N.M. 605, 943 P.2d 1058.
Liability in dual-employment situation.
— In the dual-employment situation, if the accident occurs when the worker is clearly performing services for only one employer, then that employer is liable for any workmen's (workers') compensation benefits. If, however, the services being performed at the time of the accident cannot be attributed to a specific employer, but are services performed for both employers, then both employers are liable. In the latter case, the benefits are apportioned between the employers on the basis of the percentage of the worker's total wages paid by each employer.
Clemmer v. Carpenter
, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, cert. denied, 98 N.M. 336, 648 P.2d 794.
Assault upon employee.
— A workman (worker) cannot file an independent common-law tort claim against an employer and is restricted to an action under the Workmen's (Workers') Compensation Act when an assault upon him was work-related and arose out of employment. But, where an employee had completed his work and was on his way out of the building when an assault occurred, it was not committed in the course of his employment.
Mountain States Tel. & Tel. Co. v. Montoya
, 1978-NMSC-057, 91 N.M. 788, 581 P.2d 1283.
General employment as extra-hazardous.
— The mere fact that, at the moment of injury, claimant may have been engaged in extra-hazardous work does not bring him within the act where his general employment is not classed as extra-hazardous.
Thomas v. Gardner
, 1965-NMSC-045, 75 N.M. 371, 404 P.2d 853 (decided under former law).
Where workman (worker) sustained injuries while taking fellow employee to work
when his truck collided at night with an unlighted road roller of the employer some distance from where employee's work required him to set out and check flares, the injury was not compensable under Workmen's (Workers') Compensation Act and did not preclude a common-law action based on employer's negligence.
Olguin v. Thygesen
, 1943-NMSC-034, 47 N.M. 377, 143 P.2d 585 (decided under former law).
Carpenter repairing school building.
— Carpenter who had been employed to repair school building by replacing and puttying broken windows, mending and painting window screens and hanging venetian blinds and who was injured while hanging blinds was engaged in a single employment of an extra-hazardous nature and was entitled to compensation on that basis without regard to whether hanging of blinds, standing alone, was "decoration, alteration or repair" within phrase "building work" as used in former statute.
Scofield v. Lordsburg Mun. Sch. Dist.
, 1949-NMSC-027, 53 N.M. 249, 205 P.2d 834 (decided under former law).
Returning to job site to draw advance pay.
— Assuming that returning to the job site for the purpose of drawing advance pay was a "normal incident of the employment relation," injury resulting from altercation with gate guard occurred "while he was on his way to assume" the duty of his employment and hence the claim for compensation is barred by this section.
Fautheree v. Insulation & Specialties, Inc.
, 1960-NMSC-056, 67 N.M. 230, 354 P.2d 526 (decided under former law).
Plaintiff's claim fell within the exclusive jurisdiction of the Workers' Compensation Act.
— Where plaintiff was in a motor vehicle accident on her way to work, and where she and the other driver involved in the accident were both employees of Los Alamos National Security (LANS), and where the other driver was operating a vehicle owned by LANS, and where plaintiff filed a complaint in the district court alleging negligence by both the other driver and LANS, the district court did not err in granting defendants' motion for summary judgment, because plaintiff's claim arose in the course and scope of her employment by LANS, thus triggering the exclusivity provision of the Workers' Compensation Act (WCA). The WCA is therefore plaintiff's exclusive remedy and the tort claims brought in the district court were barred.
Finn v. Tullock
, 2023-NMCA-002,
cert granted
.
II. ACCIDENTAL INJURY.
Aggravation by accident of preexisting condition as compensable.
— That claimant in his early life suffered from tuberculosis resulting in a Ghon tubercle does not preclude claimant from compensation for dust induced hemorrhage on the job, even though one without such a condition would not have been so adversely affected from breathing a sudden heavy concentration of dust. The aggravation by accident of a preexisting condition, whether the result of a disease or a congenital weakness, is nevertheless compensable.
Lucero v. C.R. Davis Contracting Co.
, 1962-NMSC-136, 71 N.M. 11, 375 P.2d 327,
overruled on other grounds by
Mascarenas v. Kennedy
, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.
Evidence to establish causal connection between work accident and disability.
— Evidence, taken in consideration with the fact that all through a life of heavy work the claimant, though suffering from tuberculosis in infancy resulting in a scarred lung, had never before hemorrhaged, and for the first time did so while coughing as the result of suddenly breathing heavy dust on the job, provided an ample evidence to sustain a causal connection between work accident and claimant's disability.
Lucero v. C.R. Davis Contracting Co.
, 1962-NMSC-136, 71 N.M. 11, 375 P.2d 327,
overruled on other grounds by
Mascarenas v. Kennedy
, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.
Evidence substantiates causal relationship between employment and heart attack.
— Regardless of any claimed conflict in the testimony of the medical experts, where they were in agreement generally in their opinions that an emotional upset results in stress upon the heart as much as physical stress, and that anger may be a precipitating cause of heart attacks, either disabling or fatal, and that an employee who was suffering from advanced generalized arteriosclerosis of the coronary arterial system would be more affected by severe stress than one who had no arteriosclerosis, the evidence met the requirements of substantiation and the evidence established a causal relationship, and the employee, in the course of his employment, became emotionally upset, suffered a compensable accidental injury and as a result thereof died of a myocardial infarction due to arteriosclerotic heart disease.
Little v. J. Korber & Co.
, 1963-NMSC-012, 71 N.M. 294, 378 P.2d 119.
Sudden breathing of dust as accident.
— Where there is a sudden breathing by employee of heavy dust-laden air, caused by the nearby operation of a power broom sweeping the streets, which when taken into his lungs caused a coughing spell and a resulting sudden hemorrhage, it can be said to produce an "unintended," "unexpected" and "unlooked for" result, requiring the court to characterize the event as accidental and is sufficient to sustain a finding of accidental injury in the course of employment.
Lucero v. C.R. Davis Contracting Co.
, 1962-NMSC-136, 71 N.M. 11, 375 P.2d 327,
overruled on other grounds by
Mascarenas v. Kennedy
, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.
Intentional torts that are accidental.
— 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 an alter ego theory.
Griego v. Patriot Erectors, Inc.
, 2007-NMCA-080, 141 N.M. 844, 161 P.3d 889, cert. denied, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459.
Intentional act of co-worker does not preclude recovery.
— Where the worker's supervisor intentionally slugged the worker while the worker was complaining about the supervisor to their mutual construction superintendent, the worker's injury was accidental and the worker may recover worker's compensation benefits.
Griego v. Patriot Erectors, Inc.
, 2007-NMCA-080, 141 N.M. 844, 161 P.3d 889, cert. denied, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459.
Non-participant in a workplace accident.
— Where worker suffered an injury while on break at worker's workplace when a co-worker grabbed worker by the shoulders in the area of the worker's neck and lifted the worker off the ground; and the worker was a non-participating victim of the incident and the horseplay was one-sided on the part of the co-worker, the worker's injury was an accidental result of an incident that the worker neither expected nor designed and was compensable under the Workers' Compensation Act.
Esckelson v. Miners' Colfax Med. Ctr.
, 2014-NMCA-052.
Heart attack caused by employment is accidental injury within this article.
Segura v. Kaiser Steel Corp.
, 1984-NMCA-046, 102 N.M. 535, 697 P.2d 954, cert. quashed, 102 N.M. 412, 696 P.2d 1005 (1985).
Stroke arising out of employment.
— A worker's injury, a stroke which was a result of on the job stress resulting from a safety-related incident, "arose out of" his employment.
Shadbolt v. Schneider, Inc.
, 1985-NMCA-086, 103 N.M. 544, 710 P.2d 738, cert. quashed, 104 N.M. 632, 725 P.2d 832.
Requirement or custom established by employer.
— An employee who comes upon the premises on an off day to receive a paycheck, which is a requirement or custom established by the employer, and is injured while on the premises for that purpose, sustains the injury while in the course of employment.
Martinez v. Stoller
, 1981-NMCA-092, 96 N.M. 571, 632 P.2d 1209.
Slipping on ice not danger peculiar to employment.
— As the hazard of slipping on the ice in the alley was not a causative danger peculiar to the claimant's employment, the injury received 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 (decided under former law).
III. COURSE OF EMPLOYMENT.
Injury compensable only if related to employment.
— An injury is compensable only if it is shown to be both "arising out of" and "in the course of" employment.
Romero v. S.S. Kresge Co.
, 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, cert. denied, 95 N.M. 593, 624 P.2d 535,
overruled on other grounds by
Dupper v. Liberty Mut. Ins. Co.
, 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.
Burden on claimant to establish accident in course of employment.
— Burden is on the claimant to establish by evidence that worker's death was proximately caused by an accident arising out of and in the course of his employment.
Sw. Portland Cement Co. v. Simpson
, 135 F.2d 584 (10th Cir. 1943).
Burden of proof after claimant raised reasonable inference regarding course of employment.
— After claimant has introduced proof of facts raising a natural and reasonable inference that accident arose out of and in the course of employee's employment and occurred when he was performing services arising out of and in the course of his employment, burden rested on the employer to show the contrary.
Sw. Portland Cement Co. v. Simpson
, 135 F.2d 584 (10th Cir. 1943).
Inference by jury as to course of employment.
— Where there is substantial evidence that death of employee resulted from accident and that accident occurred during his hours of work, at a place where his duties required him to be, or where he might properly have been in the performance of such duties, the triers of the issues of fact may reasonably conclude therefrom, as a natural inference, that the accident arose out of and in the course of the employment.
Sw. Portland Cement Co. v. Simpson
, 135 F.2d 584 (10th Cir. 1943).
Course of employment as presumption of fact.
— Since burden is on claimant to prove that accident arose out of and in the course of employment, either by direct evidence or by evidence from which these facts may be legitimately inferred, the presumption is not a legal presumption, but one of fact, that is, a natural inference drawn from proven facts.
Sw. Portland Cement Co. v. Simpson
, 135 F.2d 584 (10th Cir. 1943).
Accident arises in course of employment when
it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto.
Wilson v. Rowan Drilling Co.
, 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365.
Claimant not disqualified from disability due to preexisting condition where injury in course of employment.
— That claimant was susceptible to an intervertebral disc problem, and there was no doubt but that it was because of this preexisting condition that injury occurred, did not disqualify him from disability benefits, where it was determined that the injury arose out of and in the course of his employment.
Shannon v. Sandia Corp.
, 1968-NMSC-183, 79 N.M. 634, 447 P.2d 514.
Admission of company and insurer support finding of course of employment.
— Admission of making of accident report by the foreman of defendant company and the payment of weekly compensation and medical benefits by the insurer, while not conclusive, was sufficient to support a finding that accident arose out of and in the course of plaintiff's employment by defendant company.
Johnson v. J.S. & H. Constr. Co.
, 1969-NMCA-122, 81 N.M. 42, 462 P.2d 627.
Employer's admission that he had paid several thousand dollars worth of premiums to take care of a particular accident was competent evidence the workmen were injured in an accident arising out of and in the course of their employment, but it was not conclusive on the point.
Feldhut v. Latham
, 1955-NMSC-080, 60 N.M. 87, 287 P.2d 615.
When employee is sent by his employer on a special mission
away from his regular work; or by the terms of his contract of employment is burdened with a special duty incidental thereto, but aside from the labor upon which his wages are measured; while upon such mission, or in the performance of such duty, the employee is acting within the course of his employment.
Wilson v. Rowan Drilling Co.
, 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365.
Within scope where helping foreman's stalled car.
— Workmen on their way to work who were injured while pushing general foreman's stalled car at his request were held to be within the scope of their employment and entitled to compensation under the Workmen's (Workers') Compensation Act.
Feldhut v. Latham
, 1955-NMSC-080, 60 N.M. 87, 287 P.2d 615.
Stockholder injured within scope when working as manager.
— Evidence showed that stockholder who was president and member of board of directors of corporation sustained an injury suffered in an accident arising out of and in the scope of his employment while working as manager for the defendant corporate employer and that he died as a result thereof.
Shillinglaw v. Owen Shillinglaw Fuel Co.
, 1962-NMSC-047, 70 N.M. 65, 370 P.2d 502.
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.
Injury is said to arise in course of employment.
— An employee's injury arose in the course of employment if it happened within the period of employment at some place where the employee might reasonably be and while he was reasonably fulfilling duties of his employment or was doing something incidental thereto.
McKinney v. Dorlac
, 1944-NMSC-017, 48 N.M. 149, 146 P.2d 867 (decided under former law).
Liability under dual-purpose doctrine.
— The dual-purpose doctrine provides that when a worker is on a trip which serves both a business and a personal purpose, and the business purpose would have necessitated the trip by someone even if it had not coincided with the personal purpose, then injury occurring on the trip is within the course of the worker's employment.
Clemmer v. Carpenter
, 1982-NMCA-098, 98 N.M. 302, 648 P.2d 341, cert. denied, 98 N.M. 336, 648 P.2d 794.
Off-premise activity during lunch or meal period.
— Where the employee is engaged in an off-premise activity during the lunch or meal period in furtherance of his employer's interests, and at the direction of or with the consent of his employer, an injury sustained by the employee may be compensable under the Workers' Compensation Act.
Smith v. City of Albuquerque
, 1986-NMCA-113, 105 N.M. 125, 729 P.2d 1379.
A back injury sustained when claimant, a city risk management coordinator, tripped and fell in a restaurant after having lunch with a city attorney was compensable, where the primary purpose of the lunch was to discuss cases on which they had been working, and 75% of the lunch meeting was devoted to the discussion of city business.
Smith v. City of Albuquerque
, 1986-NMCA-113, 105 N.M. 125, 729 P.2d 1379.
Injury in repairing employee's truck.
— Under findings of trial court that employee was required to keep his truck in repair, that injury was received 22 miles from the place of work in repair shop with which the employer had no connection, and where employer's business did not require the presence of the employee, the employee's injury did not arise out of and in the course of his employment.
McDonald v. Denison
, 1946-NMSC-046, 51 N.M. 386, 185 P.2d 508 (decided under former law).
IV. EMPLOYER'S PREMISES.
Employer's parking lot did not constitute premises.
— Mere employee "use" of a parking lot is insufficient to consider the lot part of the employer's "premises."
Constantineau v. First Nat'l Bank
, 1991-NMCA-040, 112 N.M. 38, 810 P.2d 1258, cert. denied, 112 N.M. 21, 810 P.2d 1241.
Ingress and egress from employer's premises.
— 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 Workers' Compensation Act (this article), 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.
Railroad crossing which was the sole means of ingress and egress to employer's plant constituted a part of employer's premises for purposes of recovery of benefits under the premises exception to the going and coming rule.
Garcia v. Mt. Taylor Millwork, Inc.
, 1989-NMCA-100, 111 N.M. 17, 801 P.2d 87, cert. denied, 110 N.M. 282, 795 P.2d 87.
V. GOING AND COMING RULE.
The traveling-employee exception to the going and coming rule.
— Under the traveling-employee exception to the going and coming rule, an employee whose work entails travel away from the employer's premises is, in most circumstances, under continuous workers' compensation coverage from the time he leaves home until he returns. The exception applies during the entire time the employee is traveling, and therefore necessarily encompasses injuries incurred while the employee is not actually working, such as when the employee is engaged in leisure or recreational activities. One seeking compensation for an injury must still demonstrate that the injury arose out of and in the course of employment. The requirement is met if the traveling employee was injured while engaging in an activity that was both reasonable and foreseeable, and if that activity is not conducted in an unreasonable or unforeseeable manner. Finally, the activity must confer some benefit on the employer.
Armenta v. A.S. Horner, Inc.
, 2015-NMCA-092, cert. granted, 2015-NMCERT-008.
Where worker, on a work-related trip in Springer, New Mexico, had been allowed to drive employer's vehicle after work hours to pick up food and alcohol for an employees' dinner, but after dinner was told by his supervisor to drink moderately and to not leave the motel, worker, despite the warning, left the motel in employer's vehicle and headed to Raton to continue partying. Worker was killed in an accident just north of Springer. Worker's blood alcohol concentration was .23 at the time of his death. The accident did not arise out of and in the course of employment because worker's decision to take the vehicle for a ride could be considered foreseeable and reasonable conduct under the traveling-employee exception, but doing so under the significant influence of alcohol was not reasonable, and no benefit could have been conferred on employer by worker's drinking excessively and driving to Raton, where employer had no business interests.
Armenta v. A.S. Horner, Inc.
, 2015-NMCA-092, cert. granted, 2015-NMCERT-008.
Traveling employee exception not applicable.
— Where oil field workers were killed or injured while traveling home after working hours and away from their drilling rig work site which was located 37 miles from their home town; the workers were sharing a ride in the private vehicle of one of the workers; the workers were paid an hourly wage beginning when they arrived at work and ending when the left; the workers were responsible for their own transportation to the rig site; and the workers were not paid for travel time or mileage, the workers were not traveling employees and compensation for their deaths or injuries was precluded by the going and coming rule.
Flores v. McKay Oil Corp.
, 2008-NMCA-123, 144 N.M. 782, 192 P.3d 777, cert. quashed, 2009-NMCERT-003, 146 N.M. 604, 213 P.3d 508.
An employee is not in the course of employment while
going to and returning from his work, but there are many exceptions to the rule.
Wilson v. Rowan Drilling Co.
, 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365.
Application of the going and coming rule was limited by the context.
— Where plaintiff was employed by the department of public safety; plaintiff used a private bus service that provided transportation to the public to commute to work; the bus service picked passengers up at a department of transportation parking lot; while walking through the parking lot to board the bus, plaintiff fell into an unlit hole that was not clearly marked, barricaded nor cordoned off; the department of transportation's obligations and duties as the owner and operator of the parking lot were separate and distinct from the department of public safety's status as plaintiff's employer; the department of transportation held itself open to the public and had a duty to make a reasonable inspection of the parking lot and warn visitors of any dangerous conditions; the parking lot was not provided exclusively for state employees; plaintiff's use of the parking lot was unrelated to plaintiff's duties with the department of public safety; and plaintiff's status as a department of public safety employee was separate and distinct from plaintiff's status as a commuter using public transportation, the Workers' Compensation Act did not apply to plaintiff's claim and did not preclude plaintiff's claim of premises negligence against the department of transportation.
Quintero v. N.M. Dep't of Transp.
, 2010-NMCA-081, 148 N.M. 903, 242 P.3d 470, cert. quashed, 2011-NMCERT-009, 269 P.3d 904.
Traveling employee exception.
— Where workers, who were members of an oil well drilling crew that worked on the employer's mobile drilling rigs, were injured while traveling to a rig site; the employer moved its drilling rigs every seven to eight days to a new location after the drilling of a well was completed; drilling sites were located in rural areas where lodging was not available, making daily travel necessary; workers resided in the same municipality and traveled to different drilling sites without having to change their residences; the employer required the driller to have a full crew present at the drilling site at the beginning of the driller's shift; the driller transported the drilling crew to the rig site; the employer required its drillers to maintain a valid driver's license and automobile insurance and compensated its drillers for each mile traveled to the rig site; crew members were not compensated for travel time; and the employer did not dictate the route or the mode of transportation, the injuries suffered by workers arose out of and in the course of their employment because the travel was mutually beneficial to both workers and the employer and workers encountered special hazards unique to their employment while traveling. Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, 150 N.M. 164, 258 P.3d 443.
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. Therefore such an employee may be eligible for workers' compensation benefits as a traveling employee for injuries he sustains while away from home.
Ramirez v. Dawson Prod. Partners, Inc.
, 2000-NMCA-011, 128 N.M. 601, 995 P.2d 1043.
Ordinarily "injuries" sustained by employees while on their way to assume the duties of their employment or after leaving such duties are not compensable. But there are exceptions to the rule; among them, where the employment requires the employee to travel on the highways and where the employer contracts to and does furnish transportation to and from work.
Martinez v. Fidel
, 1956-NMSC-023, 61 N.M. 6, 293 P.2d 654 (decided under former law).
In two cases consolidated on appeal, a truck driver who pulled a muscle while moving a piece of furniture in his motel room, and a truck driver who was killed when taking a walk while waiting for his truck to arrive had compensable claims under the traveling employee rule; there were no facts in either case suggesting a distinct deviation from the business purpose of the trip, and in both cases the activities leading to the injuries 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.
Where employer agreed to furnish transportation.
— While employee ordinarily was not in course of employment when injured while traveling to or from work, where employer agreed to furnish transportation, and employee was paid by his employer to transport himself and other employees, and was injured fatally during such a journey, his death arose out of and in course of employment, and was compensable.
Barrington v. Johnn Drilling Co.
, 1947-NMSC-030, 51 N.M. 172, 181 P.2d 166 (decided under former law).
Where employer in employment contract agreed to transport employees to and from work, an employee who was injured while being transported suffered his injury in the course of employment.
Barrington v. Johnn Drilling Co.
, 1947-NMSC-030, 51 N.M. 172, 181 P.2d 166 (decided under former law).
Employee required to drive city vehicle to and from work and remain on call at all times at home
was within his "course of employment" when driving home, even though he spent two and one-half hours after work, and before his drive, socializing and drinking in a bar.
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).
Traveling between job sites does not fall within the "going and coming" rule,
and an employee who is injured while going from job site to job site will not be excluded from receiving benefits.
Garcia v. Phil Garcia's Elec. Contractor
, 1982-NMCA-186, 99 N.M. 374, 658 P.2d 449, cert. denied, 99 N.M. 358, 658 P.2d 433.
Worker's claim was barred by the going and coming rule.
— Claimant, who was injured while walking from a city-owned parking facility to her employer's premises, did not suffer an accidental injury arising out of and in the course of her employment pursuant to the "going-and-coming rule", where her employer did not require its employees to use the parking facility and some employees in fact did use other parking facilities.
Constantineau v. First Nat'l Bank
, 1991-NMCA-040, 112 N.M. 38, 810 P.2d 1258, cert. denied, 112 N.M. 21, 810 P.2d 1241.
Worker's claim was not barred by the going and coming rule
simply because the accident occurred after claimant had left the employer's designated parking lot at a shopping mall but before she had arrived at her employer's shop in the mall, where she had met a coworker with whom she had coffee in a mall restaurant before slipping on a heavily waxed floor.
Lovato v. Maxim's Beauty Salon, Inc.
, 1989-NMCA-083, 109 N.M. 138, 782 P.2d 391.
Requirement or custom estalbished by employer.
— In action for compensation for death of employee killed in automobile collision after leaving work over most practical and usual route traveled by him and other employees on premises of employer, claimant could not recover without proof of employer's negligence.
Cuellar v. American Employers' Ins. Co.
, 1932-NMSC-018, 36 N.M. 141, 9 P.2d 685 (decided under former law).
Under the provisions of this section, an employee ordinarily has no compensable claim if injured while on his way to assuming the duties of his employment or after leaving such duties. On the other hand, an employee does have a compensable claim if injured while on his way to assuming his duties or leaving his duties if the employer's negligence was the proximate cause of that injury. Galles Chevrolet Co. v. Chaney, 1979-NMSC-027, 92 N.M. 618, 593 P.2d 59.
Where employer is negligent dependents recover compensation.
— Where a workman (worker) leaving his work in road-building, while on his way to his home by a reasonable and not prohibited route, in the area then being used by his employer, was killed by negligence in the road-building, attributable to his employer, compensation was recoverable by his dependents.
Cuellar v. American Employers' Ins. Co.
, 1932-NMSC-018, 36 N.M. 141, 9 P.2d 685 (decided under former law).
Stop did not deny trip character.
— Mere fact that while en route to a construction job over which project engineer had supervision he called on his desperately ill father did not deny the trip character as in the course of his employment, where he had resumed travel on the journey which occasioned the trip, and recovery of compensation for his death resulting from accidental injury was not thereby precluded.
Parr v. N.M. State Hwy. Dep't
, 1950-NMSC-016, 54 N.M. 126, 215 P.2d 602 (decided under former law).
VI. SPECIAL ERRAND RULE.
On trip at employer's direction.
— Where employee was fatally injured on trip from Albuquerque to Roswell, the trip being made at employer's direction and on time paid for by his employer, the injuries were sustained in course of employment within provisions of the Workmen's (Workers') Compensation Act.
McKinney v. Dorlac
, 1944-NMSC-017, 48 N.M. 149, 146 P.2d 867 (decided under former law).
Deviation en route did not bar recovery.
— Where employee was traveling from Albuquerque to Roswell on employer's business, fact that he had stopped for an hour or more en route at a bar and cafe, did not bar a recovery for his death under the Workmen's (Workers') Compensation Act where the fatal injury in automobile accident took place after he resumed his journey.
McKinney v. Dorlac
, 1944-NMSC-017, 48 N.M. 149, 146 P.2d 867 (decided under former law).
Special errand rule applicable where employee on special mission.
— 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.
Special errand exception inapplicable.
— Where worker's employment involved providing personal care services, through medicaid, to her mentally disabled son, worker provided no evidence that a trip to perform laundry services in a neighboring city was required by her employer or was incident to her employer's business, as opposed to being incident to her natural care-taking role; special errand exception to the going and coming rule was inapplicable.
Begay v. Consumer Direct Personal Care
, 2015-NMCA-025, cert. denied, 2015-NMCERT-002.
Leaving for work at earlier time is not sufficient to constitute "special mission"
and to avoid the pronouncement of the "going and coming" rule as embodied in this section.
Ross v. Marberry & Co.
, 1960-NMSC-013, 66 N.M. 404, 349 P.2d 123 (decided under former law).
Making bank deposit for employer after hours covered.
— Plaintiff who was required to deposit her employer's funds in a bank after normal working hours each working day, and who was injured while returning from the bank to the point where her normal route home continued, was at work at the place where her employer's business required her to be as well as being within the "special errand" rule, and therefore was entitled to compensation.
Avila v. Pleasuretime Soda, Inc
., 1977-NMCA-079, 90 N.M. 707, 568 P.2d 233.
Law reviews.
— For note, "Workmen's Compensation in New Mexico: Preexisting Conditions and the Subsequent Injury Act," see 7 Nat. Resources J. 632 (1967).
For article, "Survey of New Mexico Law, 1979-80: Workmen's Compensation," see 11 N.M.L. Rev. 235 (1981).
For annual survey of New Mexico law relating to workmen's compensation, see 13 N.M.L. Rev. 495 (1983).
For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988).
For survey of 1990-91 workers' compensation law, see 22 N.M.L. Rev. 845 (1992).
For note, "Workers' Compensation Law The Sexual Harassment Claim Quandry: Workers' Compensation as an Inadequate and Unavailable Remedy: Cox v. Chino Mines/Phelps Dodge," see 24 N.M.L. Rev. 565 (1994).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
82 Am. Jur. 2d Workers' Compensation §§ 246 to 250, 263 et seq.
Injury to employee crossing or walking along railroad tracks going to or from work, 50 A.L.R.2d 363.
Workers' compensation: sexual assaults as compensable, 52 A.L.R.4th 731.
Workers' compensation: injuries incurred during labor activity, 61 A.L.R.4th 196.
Workers' compensation: injuries incurred while traveling to or from work with employer's receipts, 63 A.L.R.4th 253.
Workers' Compensation: Compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.
Workers' compensation: Law enforcement officer's recovery for injury sustained during exercise of physical recreation activities, 44 A.L.R.5th 569.
Right to workers' compensation for emotional distress or like injury suffered as result of sudden stimuli involving nonpersonnel action, 83 A.L.R.5th 103.
Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action - compensability under particular circumstances, 84 A.L.R.5th 249.
99 C.J.S. Workmen's Compensation §§ 153 to 160, 220 to 257(3); 100 C.J.S. Workmen's Compensation § 611.