GARCIA V. HOMESTAKE MINING CO., 1992-NMCA-018,
113 N.M. 508, 828 P.2d 420 (Ct. App. 1992)
CLARENCE L. GARCIA, Claimant-Appellee,
vs.
HOMESTAKE MINING COMPANY, Respondent-Appellant.
COURT OF APPEALS OF NEW MEXICO
1992-NMCA-018, 113 N.M. 508, 828 P.2d 420
Appeal from the New Mexico Workers'
Compensation Administration. Gregory D. Griego, Workers' Compensation Judge
Petition for Writ of Certiorari Denied
March 23, 1992
FILBERT J. MONTES, FILBERT J. MONTES,
ESQ., P.C., Albuquerque, New Mexico, Attorney for Claimant-Appellee.
DAVID G. REYNOLDS, CRIDER, CALVERT &
BINGHAM, P.C., Albuquerque, New Mexico, Attorneys for Respondent-Appellant.
THOMAS D. HAINES, JR., HINKLE, COX,
EATON, COFFIELD, & HENSLEY, Roswell, New Mexico, Amicus Curiae for the New
Mexico Defense Lawyers Association.
{1} Homestake Mining Co.
(employer) appeals from the final order of the workers' compensation judge
(WCJ) awarding Clarence L. Garcia (claimant) compensation benefits under the
Workers' Compensation Act (Act). Employer raises the following issues on
appeal: (1) whether there is substantial evidence to support the finding and
conclusion of the WCJ that claimant was injured in an accident arising out of
his employment; (2) whether there is substantial evidence to support the
finding and conclusion of the WCJ that claimant's injury occurred in the course
of his employment; and (3) whether the WCJ erred in failing to find that
claimant's injury was willfully suffered. We affirm the final order of the WCJ.
{2} Claimant was employed by
employer as an underground miner since 1968. On May 15, 1989, claimant and a
fellow employee were working in their assigned work areas within the mine. The
two employees were in the process of slushing, which consists of using an electronic
ore bucket to scrape ore into piles for later removal. During this process,
they were prevented from continuing in the slushing activity by the presence of
a boulder. In order to continue, they had to blast the boulder, so they set
explosive charges, left the area, blasted, and returned. Various federal,
state, and employer's regulations prohibit any work in an area after blasting,
until barring down has occurred. The process of barring down involves using a
scaling bar, a six-and-one-half-foot-long steel bar with a chisel end, to
identify and remove loose or
{*510} unstable
rocks on the sides and the ceiling of a tunnel before entering recently blasted
areas. This is to prevent such rock from falling and causing injury to miners.
Claimant had been apprised of regulations regarding barring down during safety
training sessions. Claimant testified that he barred down after returning to
the area. However, the WCJ determined that claimant failed to use a scaling bar
upon his return, even though scaling bars were provided by employer for
claimant's use. Claimant was injured after returning to the recently blasted
work area when a large rock fell on his right foot.
{3} Claimant timely filed his
claim against employer on July 19, 1989, seeking temporary total disability
benefits. The WCJ found and concluded that claimant's injury arose out of and
in the course of employment. The WCJ found that claimant had failed to observe
statutory regulations. The WCJ also found that claimant failed to use the
safety device provided by employer. The safety device provided was a scaling
bar. The WCJ further found that such failure resulted in claimant's injury.
Accordingly, the WCJ reduced the compensation rate by ten percent for
claimant's failure to use a safety device, pursuant to NMSA 1978, Section
52-1-10(A) (Repl. Pamp. 1987).
{4} Employer argues that
claimant is precluded from receiving compensation because claimant's injury did
not arise out of or in the course of his employment. Employer attacks the sufficiency
of the evidence to support these findings.
{5} On appeal from workers'
compensation cases decided by the Workers' Compensation Division, we review the
sufficiency of evidence to support conclusions according to the whole record
review standard.
Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124,
767 P.2d 363 (Ct. App. 1988). "Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion."
Register v. Roberson Constr. Co., 106 N.M. 243, 245,
741 P.2d 1364, 1366 (1987). The reviewing court views the evidence in the light
most favorable to the agency decision, but it may not view favorable evidence
with total disregard to contravening evidence.
National Council on
Compensation Ins. v. New Mexico State Corp. Comm'n, 107 N.M. 278,
756 P.2d
558 (1988).
{6} In order for an injured
employee to receive compensation under the Act, the employee must be performing
a service arising out of and in the course of his employment at the time of the
accident, and the injury must arise out of and in the course of his employment.
NMSA 1978, §
52-1-9 (Repl. Pamp. 1987). The principles "arising out
of" and "in the course of his employment," within the meaning of
the Act, must exist simultaneously at the time of the injury in order for
compensation to be awarded.
Walker v. Woldridge, 58 N.M. 183,
268 P.2d
579 (1954).
{7} First, we address whether
there is substantial evidence to support the finding and conclusion of the WCJ
that claimant's injury arose out of his employment. The term "arising out
of" refers to the cause of the injury and denotes a risk reasonably
incident to the claimant's work.
Kloer v. Municipality of Las Vegas, 106
N.M. 594,
746 P.2d 1126 (Ct. App. 1987). Employer contends that claimant's
accident was not reasonably incident to his work because claimant's employment
did not subject him to the risk of falling rocks in an area which had not been
barred down. We do not agree.
{8} At trial, evidence was
introduced that blasting and slushing are common causes of rock falls. Evidence
was also introduced that rock falls are one of the leading causes of
underground mining accidents. Additionally, evidence was introduced that rock
falls occur during the slushing procedure, even after barring down. We believe
that the question of whether the evidence denotes a risk reasonably incident to
claimant's work is a question for the fact finder. Further, based on the whole
record standard of review, there was sufficient evidence for the WCJ to find
{*511} that claimant's injury arose out of a
risk incident to his employment.
{9} Next, we address whether
there is substantial evidence to support the finding and conclusion of the WCJ
that claimant's injury occurred in the course of his employment. Initially, we
note that the parties stipulated that the accident occurred in the course of
claimant's employment with employer; however, it appears that the issue was
tried by the consent of the parties.
See First Nat'l Bank in Albuquerque v.
Rowe, 52 N.M. 366,
199 P.2d 987 (1948) (a stipulation is waived by
acquiescence where a party voluntarily joins in litigating an issue not
pleaded).
{10} This court has
previously stated that "an injury occurs in the course of employment when
it takes place within the period of employment, at a place where the employee
may reasonably be, and while the employee is reasonably fulfilling the duties
of employment or doing something incidental to it."
Kloer, 106 N.M.
at 597, 746 P.2d at 1129.
{11} There is evidence that
claimant's injury occurred during his period of employment and at his assigned
work area. There is also evidence that slushing and blasting are duties of a
miner, and claimant was involved in performing such duties when the injury
occurred. Considering the whole record, there was sufficient evidence for the
WCJ to find that claimant's injury occurred in the course of his employment.
{12} Notwithstanding the
above and to emphasize that "willful conduct" will remove an injury
from occurring "in the scope of employment," employer essentially
argues that claimant's failure to follow regulations took claimant's injury
outside the course of his employment. Employer argues that claimant, although
required by federal, state, and employer regulations to bar down after
blasting, failed to bar down and was not authorized to be engaged in activity
in an area which had not been barred down after blasting. Employer further
argues that claimant's failure to bar down amounted to willful conduct which,
pursuant to NMSA 1978, Section
52-1-11 (Repl. Pamp. 1987), bars recovery under
the Act. In employer's view, a finding that claimant's failure to bar down was
willful misconduct would prevent
any recovery regardless of the
applicability of Section 52-1-10(A), because that section provides that only
"compensation otherwise payable . . . shall be reduced ten percent."
Here, the WCJ rejected employer's proposed finding that claimant's injury was
willfully suffered, thereby implicitly finding that claimant's injury was not
willfully suffered.
See Jensen v. New Mexico State Police, 109 N.M. 626,
788 P.2d 382 (Ct. App. 1990). Because the WCJ did not find that claimant's
injury was willfully suffered and that Section 52-1-10(A) nonetheless allowed
recovery of benefits, this court need not address the issue of whether Section
52-1-10(A) controls over Section 52-1-11 and would allow an employee to recover
benefits, albeit at a reduced rate, if the employee willfully, as opposed to
negligently, failed to use a safety device. In this appeal, the issue is only
whether there is substantial evidence to support the findings of the WCJ.
{13} The claim that an
employee willfully suffered an injury is a defense to compensability under the
Workers' Compensation Act of New Mexico. Section 52-1-11 states: "no
compensation shall become due or payable from any employer under the terms
hereof in event such injury was . . . willfully suffered by [employee], or
intentionally inflicted by [employee]." Employer also relies on NMSA 1978,
Section
52-1-8(C) (Repl. Pamp. 1987), which states that in actions to recover
compensation for personal injuries sustained by an employee occurring in the
line of duty, it is not a defense "that the injury . . . was caused, in
whole or in part, by the want of ordinary care of the injured employee where
such want of care was not willful."
{14} In interpreting Section
59-10-5(C), the predecessor to Section 52-1-8(C), this court has defined
"willful" as "'the intentioned doing of a harmful act without
just cause or excuse or an intentional act done in utter disregard for the
consequences.'"
Gough v. Famariss Oil & Ref. Co., 83 N.M. 710,
714,
496 P.2d 1106, 1110 (Ct. App. 1972) (citing
{*512}
Potomac Ins. Co. v. Torres, 75 N.M. 129,
401 P.2d 308 (1965)). In
Gough,
the claimant was employed as a truck driver and was assigned to transport 9000
gallons of gasoline. The claimant was injured in an accident after he allowed
an unauthorized passenger, who had been drinking alcohol, to drive the truck
down a road with numerous hairpin curves, under hazardous weather conditions.
The claimant had been instructed numerous times by his employer not to carry
passengers in his truck and not to allow any unauthorized person to drive the
truck. This court found that the claimant's actions, which were harmful,
intentional, without just cause or excuse, or done in utter disregard of the
consequences, rose to the level of willful misconduct sufficient to bar
compensation under the Act.
{15} Employer cites
Lukesh
v. Ortega, 95 N.M. 444,
623 P.2d 564 (1980), to support his argument that
claimant's injury was willful and thus did not occur within the course of
employment. In
Lukesh, the claimant was injured when he assisted in
lifting heavy machinery. The claimant had been given explicit instructions that
his job responsibilities did not include heavy lifting, specifically including
machinery. The court held that the claimant's injury was not compensable
because his voluntary acts, against the express instructions of his employer,
were willful and constituted an act outside the course of his employment.
However,
Lukesh does not control here.
Lukesh may be
distinguished in that the lifting of heavy machinery was specifically not part
of the claimant's job responsibility. Here, although there is evidence that
miners were required to bar down after using explosives, there is also evidence
that barring down is an ongoing procedure in a miner's work day. Employer's
safety officer testified that each miner, on an individual basis, determines
when to bar down and that miners have the training, experience, and authority
to examine their work areas after blasting in order to determine whether
conditions are safe to proceed with their work. Thus, we believe that this
situation is more analogous to
Stebens v. K-Mart Corp., 99 N.M. 720,
663
P.2d 379 (Ct. App. 1983), in which this court held that the employer's
instructions to its security manager regarding physical confrontations with
shoplifters left discretion to the employee as to how to handle such
situations. The employee's injury after tackling a shoplifter was held to not
be willful and employee was entitled to compensation.
{16} This court has
previously stated that while the violation of an instruction may bar
compensation in some instances, it is not a per se bar to compensation.
Lukesh,
95 N.M. at 445, 623 P.2d at 565. Commentators assert that the violation of an
instruction or a regulation, without more, is not willful. In 99 C.J.S.
Workmen's
Compensation Section 260, at 901-02 (1958), it is stated:
Under statutes expressly so providing, compensation is not
allowed for injury caused by a willful violation of law by the employee, and it
is generally held that the willful or deliberate and intentional violation of a
statute or public regulation designed for the protection of the employee is
willful . . . misconduct, precluding recovery, under statutes barring
compensation in case of willful misconduct . . . . However, not every violation
of a statute, ordinance, or public regulation precludes the employee from
recovery, but whether or not it does is dependent on the circumstances that is,
on the nature of the misconduct and the character of the statute or regulation
violated. A mere violation alone, with nothing more, is not willful. (Footnotes
omitted)
{17} Additionally, in
discussing why the defense of willfulness has not succeeded in a variety of
situations, 1A A. Larson,
Workmen's Compensation Law Section 32.20, at
6-47 to 6-50 (1990), states: "In most instances, the ground of rejection
of the defense was the absence of 'wilfulness.' Usually the act, although
prohibited, was instinctive or thoughtless, rather than intentional and
deliberate . . . in some cases, the action, while in a sense deliberate, was
attributable to bad judgment rather than wilful misbehavior." Therefore,
it is possible for an employee, who was injured
{*513}
as a result of the violation of an instruction or a law, to have acted
without willfulness so as to bar compensation for his injury under the Act.
{18} Employer has raised the
defense of willfulness and has the burden of proving that claimant's injury was
willfully suffered.
See Baca v. Bueno Foods, 108 N.M. 98,
766 P.2d 1332
(Ct. App. 1988) (one who seeks relief under a statute has the burden of proving
he or she comes within its terms). However, employer did not meet this burden.
Employer's requested finding that claimant's injury was willfully suffered was
refused by the WCJ. Although the WCJ did not make an express finding that
claimant's injury was not willful, "where a party has the burden of proof
on an issue and requests findings on that issue, which are refused, the legal
effect of the refusal is a finding against that party."
Jensen, 109
N.M. at 630, 788 P.2d at 386. Based on the whole record standard of review, we
agree that there was sufficient evidence in the record for the WCJ to refuse to
find that claimant's injury was willfully suffered.
{19} For the foregoing
reasons, we affirm the final order of the WCJ. No costs are awarded.
APODACA and CHAVEZ, JJ., concur.