New Mexico Code § 52-1-9

The right to the compensation provided for in this act [Chapter 52, Article 1 NMSA 1978], in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:
A. at the time of the accident, the employer has complied with the provisions thereof regarding insurance;
B. at the time of the accident, the employee is performing service arising out of and in the course of his employment; and
C. the injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted.
History: Laws 1937, ch. 92, § 4; 1941 Comp., § 57-906; 1953 Comp., § 59-10-6; Laws 1973, ch. 240, § 4.
Cross references. — For effect of application of provision of act, see 52-1-6 NMSA 1978.
For meaning of "injury by accident arising out of and in the course of employment," see 52-1-19 NMSA 1978.
I. GENERAL CONSIDERATION.
No willful and intentional conduct outside of Workers' Compensation Act. — Where defendant, who was plaintiff's employer, modified a rock crusher by removing the protective shield covering the flywheel and adding a step next to the flywheel to make it easier to clear jams and to perform maintenance; plaintiff was injured by the flywheel as plaintiff knelt on the step to clear a jam; there was no evidence that defendant ordered plaintiff to enter the crusher to clear a rock jam; plaintiff was the person designated to turn off the crusher prior to clearing jams; plaintiff chose not to turn off the crusher; defendant trained plaintiff to shut off the crusher to clear jams; and plaintiff was told by two fellow employees to come out of the crusher, plaintiff failed to prove that defendant engaged in intentional conduct that resulted in injury to plaintiff. Chairez v. James Hamilton Constr. Co. , 2009-NMCA-093, 146 N.M. 794, 215 P.3d 732, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Dual-persona and dual-transaction doctrines. — Under the dual-persona doctrine, an employer may be treated as a third party, vulnerable to tort suit by an employer if, and only if, the employer possesses a second persona sufficiently independent from and unrelated to the employer's status as employer. A variation of the dual-persona doctrine is the dual-transaction doctrine where an employee is involved in two transactions with the same person: one involving the employee's employer, and the other involving an injury that is entirely unrelated to the employee's employment except for the fact that the injury happens to be caused by the same person who employs the employee. Espinosa v. Albuquerque Pub. Co. , 1997-NMCA-027, 123 N.M. 605, 943 P.2d 1058, cert. quashed 124 N.M. 589, 953 P.2d 1087 (1998).
Dual persona doctrine not applicable. — Where the employer modified a rock crusher by removing the protective shield covering the flywheel and adding a step next to the flywheel to make it easier to clear jams and to perform maintenance; and the worker was injured by the flywheel as the worker knelt on the step to clear a jam, the employer did not take on a separate persona as an equipment manufacturer, thereby losing its protection under the Workers' Compensation Act. Chairez v. James Hamilton Constr. Co. , 2009-NMCA-093, 146 N.M. 794, 215 P.3d 732, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Special employer doctrine. — Defendant was a special employer where worker was an employee of a contractor that provided contract employees to governmental agencies, defendant selected worker from a list of qualified candidates supplied by the contractor, defendant provided day-to-day technical direction to its contract employees and defendant could direct the contractor to remove any contract employee from the contract with defendant, the contractor was responsible for all decisions relating to hiring, firing, demotions, compensation and employee benefits, all contract employees were considered employees of the contractor, the contractor paid the worker a wage and benefits. Hamberg v. Sandia Corp. , 2007-NMCA-078, 142 N.M. 72, 162 P.3d 909, aff'd, 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209.
An employer may be considered a special employer if the following factors are met: (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done is essentially that of the special employer; and (3) the special employer has the right to control the details of the work. Hamberg v. Sandia Corp. , 2007-NMCA-078, 142 N.M. 72, 162 P.3d 909, aff'd , 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209.
Workers' compensation administration lacked jurisdiction to hear claim against Pueblo without an express waiver of sovereign immunity. — Where worker filed a workers' compensation claim with the workers' compensation administration after she suffered an on-the-job injury at Isleta resort and casino, which is located on the Pueblo of Isleta, the workers' compensation judge did not err in granting a defense motion to dismiss for lack of jurisdiction, referencing the Pueblo's tribal sovereign immunity, because absent congressional authorization or an express and unequivocal waiver by a tribe, state courts cannot hear suits against tribes, and in this case, the Pueblo has not unequivocally expressed a waiver of its sovereign immunity. Mendoza v. Isleta Resort and Casino , 2020-NMSC-006, rev'g 2018-NMCA-038.
An injured worker who is a non-party to a contract is prevented from enforcing compliance with the contract. — Where worker filed a workers' compensation claim with the workers' compensation administration after she suffered an on-the-job injury at Isleta resort and casino, which is located on the Pueblo of Isleta, and where the claim was dismissed for lack of jurisdiction based on the Pueblo's sovereign immunity, worker did not have a private right of action to enforce the 2015 Indian Gaming Compact, which states that a workers' compensation program will be created, because worker was not a party to the compact, which was a contract between the Pueblo of Isleta and the state of New Mexico. Mendoza v. Isleta Resort and Casino , 2020-NMSC-006, rev'g 2018-NMCA-038.
Where joinder of an indispensable party is not feasible because of sovereign immunity, the case must be dismissed. — Where worker filed a workers' compensation claim with the workers' compensation administration after she suffered an on-the-job injury at Isleta resort and casino, which is located on the Pueblo of Isleta, the workers' compensation judge did not err in granting a defense motion to dismiss, referencing the Pueblo's tribal sovereign immunity; the Pueblo was an indispensable party to an action against its insurers because the Pueblo's interests could be affected absent its joinder and joinder was not feasible because of the Pueblo's sovereign immunity. If a party is deemed indispensable, the case must be dismissed. Mendoza v. Isleta Resort and Casino , 2020-NMSC-006, rev'g 2018-NMCA-038.
Waiver of sovereign immunity by Indian casino. — Where worker was injured during the course of her employment at the Isleta resort and casino, and where worker filed a workers' compensation complaint with the workers' compensation administration, naming Isleta casino, the insurance company with which Isleta casino maintained workers' compensation insurance, and the third-party administrator of Isleta casino's workers' compensation insurance policy, and where the workers' compensation judge granted a defense motion to dismiss on grounds of sovereign immunity, the district court erred in granting the motion to dismiss, because the 2015 Indian Gaming Compact, which addressed workers' compensation for tribal gaming enterprise employees, contains an express and unequivocal waiver of sovereign immunity and because worker is a third-party beneficiary to the workers' compensation insurance policy between Isleta casino and its insurance company. Mendoza v. Isleta Resort & Casino , 2018-NMCA-038, cert. granted.
Course and scope of employment. — Where a worker who was employed as a "greeter" for his employer was injured when he apprehended a customer carrying a box after a security alarm went off, indicating that the customer was leaving the store without having paid for the merchandise, and where the worker was not given, shown or knew about specific instructions as to the employer's policy on apprehension of shoplifters, the worker's job instructions were to stop customers and check receipts and merchandise if the security system was activated or if merchandise was not in a bag, the employer had no clear policy that a greeter was not to apprehend a shoplifter, and the worker's job description did not state that he had to call security or management when a customer set off the security alarm, the worker's accident arose out of and occurred within the course and scope of his employment. Grimes v. Wal-Mart Stores Inc. , 2007-NMCA-028, 141 N.M. 249, 154 P.3d 64, cert. denied, 2007-NMCERT-003, 141 N.M. 401, 156 P.3d 39.
Horseplay. — In New Mexico, an incident constitutes compensable horseplay either if horseplay was a regular incident of employment or if horseplay was not a substantial deviation from employment, considering the extent of the duration, the completeness of the duration, the extent to which horseplay was an accepted part of the employment and the extent to which the nature of the employment might include some horseplay. Fuerschbach v. Southwest Airlines Co. , 439 F. 3d 1197 (10th Cir. 2006), 44 A.L.R. 6th 723 (2006).
Date from which notice measured. — The date of disability determines the date from which notice is to be measured. Tom Growney Equip. Co. v. Jouett , 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.
Work-induced aggravation of injury resulting in disability constituted accident. — Where employee testified that his work activities at subsequent employers aggravated his initial injury, supported by medical expert's testimony, this work-activity-induced aggravation of his shoulder resulting in disability constituted the "accident" for which he is required to give notice. Tom Growney Equip. Co. v. Jouett , 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.
Nurse injured in care center. — Where defendant care center is in the business of providing care to potentially violent residents, so patient's admission cannot be deemed as "without just cause", and there is no evidence that the care center subjectively expected the injury to occur or "utterly disregarded" such potential risks, and there is no evidence to suggest that, despite fearing for her safety, plaintiff nurse assistant was ordered to enter the room alone and to approach the agitated patient at a close distance alone, there are no exceptions applicable to plaintiff's claims for injury and the New Mexico Worker's Compensation Act's exclusivity provision bars plaintiff's claims. Paehl v. Lincoln Cnty. Care Ctr., Inc. , 466 F. Supp.2d 1249 (D.N.M. 2004).
Act not invalid class legislation. — Contention that insofar as negligent employers are relieved from the burden of contribution the Workmen's [Workers'] Compensation Act is exemplary of invalid class legislation is devoid of merit. Beal v. Southern Union Gas Co. , 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Workmen's [Workers'] Compensation Act abrogates or modifies the Joint Tortfeasor's Contribution Act to the extent that it has application to the liability of an employer to an employee. If the basis for employer's liability is the injuries to its employee, it is limited by the Workmen's [Workers'] Compensation Act, and there can be no contribution. Beal v. Southern Union Gas Co. , 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Purpose of workmen's [workers'] compensation laws is to provide not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. Sanchez v. Hill Lines, Inc. , 123 F. Supp. 42 (D.N.M. 1954).
Primary purpose of Workmen's [Workers'] Compensation Act is to keep an injured workman [worker] and his family at least minimally secure financially; public policy demands it. Aranda v. Mississippi Chem. Corp. , 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821; Casillas v. S.W.I.G. , 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed , 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981).
Workmen's [Workers'] Compensation Act expresses intention and policy of state that employees who suffer disablement as a result of injuries causally connected to their work shall not become dependent upon the welfare programs of the state, but shall receive some portion of the wages they would have earned, had it not been for the intervening disability. Casias v. Zia Co. , 1979-NMCA-068, 93 N.M. 78, 596 P.2d 521, cert. denied, 93 N.M. 8, 595 P.2d 1203.
Act does not create presumption of employer's liability. — Voluntary payment of workmen's [workers'] compensation benefits does not, by itself, create a presumption that the employer is liable. Wilson v. Richardson Ford Sales, Inc. , 1981-NMSC-123, 97 N.M. 226, 638 P.2d 1071.
Workmen's [Workers'] Compensation Act does not look to fault of employer; instead, the employer is liable to the employee for compensation if the conditions of this section are met. Taylor v. Delgarno Transp., Inc. , 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445.
Applicability to state employees. — Because the state highway department is not recognized by law as a legal entity distinct from the state itself, the state could not be both employer and third party tortfeasor in an action against the highway department by employees of the public defender's department who were injured while traveling in the course of their employment, and the "dual persona" doctrine did not apply to extend immunity to highway department under the exclusive remedy provisions of the Workers' Compensation Act. Singhas v. N.M. State Hwy. Dep't , 1995-NMCA-089, 120 N.M. 474, 902 P.2d 1077, aff'd , 1997-NMSC-054, 124 N.M. 42, 946 P.2d 645.
Remedy under the New Mexico Workmen's [Workers'] Compensation Act is exclusive. Chavez v. Kennecott Copper Corp. , 547 F.2d 541 (10th Cir. 1977); Sanford v. Presto Mfg. Co. , 1979-NMCA-059, 92 N.M. 746, 594 P.2d 1202.
The New Mexico Workmen's [Workers'] Compensation Act expressly makes the remedies provided by the act the sole and exclusive remedies available to an employee for claims against this employer or insurer. Dickson v. Mountain States Mut. Cas. Co. , 1982-NMSC-090, 98 N.M. 479, 650 P.2d 1.
The Workmen's [Workers'] Compensation Act is legislation in derogation of the common law and creates exclusive rights, remedies and procedures. Williams v. Amax Chem. Corp. , 1986-NMSC-041, 104 N.M. 293, 720 P.2d 1234, overruled on other grounds by Michaels v. Anglo Am. Auto Auctions, Inc. , 1994-NMSC-015, 117 N.M. 91, 869 P.2d 279.
The Workers' Compensation Act is the exclusive remedy for workers harmed by an employer's negligence. Morales v. Reynolds , 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Act affords exclusive remedy. — Once the Workmen's [Workers'] Compensation Act has become applicable either through compulsion or election, it affords the exclusive remedy for the injury by the employee or his dependents against the employer and insurance carrier. Mountain States Tel. & Tel. Co. v. Montoya , 1978-NMSC-057, 91 N.M. 788, 581 P.2d 1283.
The plaintiff's sole remedy is provided by the Workmen's [Workers'] Compensation Act. It is not the want of a possible cause of action that precludes the plaintiff from obtaining independent relief; it is the exclusivity provisions of the act. Gonzales v. United States Fid. & Guar. Co. , 1983-NMCA-016, 99 N.M. 432, 659 P.2d 318.
Once the Workmen's [Workers'] Compensation Act provides a remedy, that act is exclusive and the claimant has no right to bring an action in common-law negligence against his employer. Galles Chevrolet Co. v. Chaney , 1979-NMSC-027, 92 N.M. 618, 593 P.2d 59.
If an employer falls within the scope of the Workers' Compensation Act, the benefits and remedies provided therein are the exclusive remedy for that employer's workers who are injured or killed in accidents "arising out of and in the course of" their employment. Morales v. Reynolds , 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
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 .
Estate of deceased worker not entitled to recover under employer's uninsured motorist insurance. — Where estate of decedent sought to recover damages under decedent's employer's uninsured/underinsured motorist coverage after decedent was killed in the course of his employment by a co-worker operating an employer-owned motor vehicle, decedent's estate was not entitled to recover damages under the employer's uninsured motorist insurance, because the uninsured motorist statute, 66-5-301(A) NMSA 1978, only benefits persons "legally entitled to recover damages from owners or operators of uninsured motor vehicles", and under the Workers' Compensation Act (WCA), 52-1-1 to -70 NMSA 1978, an employee who was injured in a workplace accident caused by an employer or its representative may only seek a remedy authorized under the WCA, and under the WCA such a employee is not legally entitled to recover damages under the uninsured motorist statute. Vasquez v. American Cas. Co. of Reading , 2017-NMSC-003.
Proceedings under Workmen's [Workers'] Compensation Act are exclusive, completely preempting any other action than is set out in the act. Sanchez v. Hill Lines, Inc. , 123 F. Supp. 42 (D.N.M. 1954).
Exclusivity provision applies to injuries incurred during horseplay. — Where worker was subjected to a mock arrest as a prank organized by worker's supervisor to celebrate the end of worker's probationary period, worker's tort action of psychological injuries was barred by the exclusivity provisions of the Workers' Compensation Act because worker alleged that the injuries were proximately caused by horseplay arising out of and in the cause of worker's employment. Fuerschback v. Sw. Airlines Co. , 439 F. 3d 1197 (10th Circ. 2006), 44 A.L.R. 6th 723 (2006).
Human rights claim not barred. — The plaintiff's claim of sex discrimination under the New Mexico Human Rights Act (NMHRA), Chapter 28, Article 1 NMSA 1978, was not barred by the exclusivity provision in this section, even though her claim for worker's compensation and for violation of the NMHRA stemmed from the same set of facts. Sabella v. Manor Care, Inc. , 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901.
A temporary employer was immune from a common law tort claim of a temporary employee since it met the test of special employer; it had contractually assured that the general employer would provide workers' compensation coverage, and the temporary employee had signed a contract agreeing to look to the general employer for his remedy for on-the-job injuries. Vigil v. Digital Equip. Corp. , 1996-NMCA-100, 122 N.M. 417, 925 P.2d 883, cert. denied, 122 N.M. 279, 923 P.2d 1164.
Employee not liable for injury or death of co-employee. — Under the Workmen's Compensation Act, an employee of an employer who has complied with the requirements of the act is not subject to liability under the common law for the injury or death of a co-employee. Matkins v. Zero Refrigerated Lines, Inc. , 1979-NMCA-095, 93 N.M. 511, 602 P.2d 195.
Loss of consortium claim barred. — Since workers' compensation was the exclusive remedy of a deceased employee's survivors, the claim of the employee's husband for loss of consortium was barred as a remedy at law under the exclusive remedy provisions of the Workers' Compensation Act. Singhas v. N.M. State Hwy. Dep't , 1995-NMCA-089, 120 N.M. 474, 902 P.2d 1077, aff'd , 1997-NMSC-054, 124 N.M. 42, 946 P.2d 645.
An action for loss of consortium by the spouse of an injured worker is barred by the exclusivity provisions of the Worker's Compensation Act. Archer v. Roadrunner Trucking, Inc. , 1997-NMSC-003, 122 N.M. 703, 930 P.2d 1155.
Because the Workers' Compensation Act bars "derivative" actions for loss of consortium by the spouse of an injured worker, an unmarried significant other's consortium claim is not viable because it is derived from the injuries to the plaintiff. Paehl v. Lincoln Cnty. Care Ctr., Inc. , 466 F.Supp.2d 1249 (D.N.M. 2004).
Actual intent test overruled. — The New Mexico Supreme Court expressly overrules all case law that has required allegation or proof of an employer's actual intent to injure a worker as a precondition to a worker's tort recovery. Delgado v. Phelps Dodge Chino, Inc. , 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.
Willful or intentional conduct outside of Workers' Compensation Act. — Willfulness renders a worker's injury non-accidental, and therefore outside the scope of the Workers' Compensation Act, when: (1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury. Delgado v. Phelps Dodge Chino, Inc. , 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.
Delgado requirements. — The critical measure for Delgado claims is whether the employer has, in a specific dangerous circumstance, required the worker to perform a task where the employer is or should clearly be aware that there is a substantial likelihood the worker will suffer injury or death by performing the task. Richey v. Hammond Conservancy Dist. , 2015-NMCA-043.
Delgado requirements satisfied. — Where worker's allegations were that employer was notified that the specific equipment worker was required to use was dangerous and had nearly caused serious injuries to several employees, that employer required worker to use the equipment in spite of this knowledge and over worker's objections, and as a result, worker was severely injured using the equipment, worker satisfied the requirements of a claim under Delgado v. Phelps Dodge Chino, Inc. , 2001-NMSC-034, 131 N.M. 272; Richey v. Hammond Conservancy Dist. , 2015-NMCA-043.
Delgado requirements not satisfied. — Where employer operated a facility to receive pipeline inspection gauges or "pigs" that clean out deposits in the pipelines; the pipeline pig receiver had been modified to accept a longer "smart" pig that detected problems in the pipeline; worker was employed to retrieve the pig from the receiver; due to the modification of the receiver, worker was unable to determine if a pig was lodged in the receiver, to determine the pressure behind a pig, or to relieve pressure in the receiver; worker had to stand in front of the receiver opening to determine the location of a pig; worker was injured when a pig became dislodged and struck the worker; worker received training on operating the original receiver, but not the modified receiver; when the receiver was modified, a concern was expressed that a pig could get stalled in the receiver with pressure behind it; to mitigate the risk, a barrel extension was added to the receiver and a person was assigned to relieve pressure if necessary; when the smart pig operation was completed, employer removed the barrel extension, but did not assign a person to relieve pressure in the receiver during pig retrieval; employer refused offers from employees to change the receiver back to its original configuration; there was no evidence that employer's decision to keep the receiver in its modified state was profit-motivated in disregard for safety; and when worker was injured, worker was performing a routine task that worker had performed at least ten times before, worker failed to satisfy the requirements of a claim under Delgado v. Phelps Dodge Chino, Inc. , 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148; May v. DCP Midstream, L.P. , 2010-NMCA-087, 148 N.M. 595, 241 P.3d 193, cert. quashed, 2001-NMCERT-009, 269 P.3d 904.
Insufficient evidence to support Delgado claim. — Where plaintiff, an employee of a subcontractor hired to provide insulation, waterproofing, and fireproofing on a building construction project, made a Delgado claim, an assertion that an employer willfully injured its employee, thus subjecting it to general tort liability rather than the exclusivity provision of the Workers' Compensation Act, against his employer after a scaffolding on which plaintiff was working collapsed causing plaintiff to sustain a permanent traumatic brain injury that left him incapacitated, and where defendant filed a motion for summary judgment, arguing that its conduct did not exemplify a degree of egregiousness or conduct that approximated the employer's conduct in Delgado , the district court did not err in granting defendant's motion for summary judgment, because although the overloaded scaffolding presented a situation with an inherent probability of injury, the evidence that the scaffolding had been green tagged as safe to use and the lack of evidence that anyone raised concerns about the weight of material placed on the scaffolding demonstrated that defendant did not know the scaffold had been overloaded by another subcontractor's employees, and thus, defendant could not have the subjective intent required to prove willfulness. Camarena v. Superior Contracting Corp ., 2023-NMCA-043, cert. denied, overruling Threadgill v. 6001, Inc . A-1-CA-34785, mem. op. (N.M. Ct. App. Jul. 2, 2018) (nonprecedential).
Psychological disability incurred outside provisions of Section 52-1-24 NMSA 1978. — Since a workers' compensation judge determined that the worker suffered a work related mental disability, but that the disability was not compensable since it fell outside the definition of primary mental impairment, the exclusive remedy provision of the Workers' Compensation Act did not bar the worker's prima facie tort claim against her employer and supervisor. Beavers v. Johnson Controls World Servs., Inc. , 1995-NMCA-070, 120 N.M. 343, 901 P.2d 761, cert. denied, 120 N.M. 68, 898 P.2d 120.
Aid in 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, "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 this section are present. Wilson v. Rowan Drilling Co. , 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365 (decided under former law).
Employer is not subject to liability in addition to Workmen's [Workers'] Compensation Act even where the employer voluntarily enters into a contract which also seeks indemnity. Gulf Oil Corp. v. Rota-Cone Field Operating Co. , 1972-NMCA-167, 84 N.M. 483, 505 P.2d 78, writ quashed, 85 N.M. 636, 515 P.2d 640.
Legislature intended to declare void any contract provisions which seek to impose additional liability on an employer. Gulf Oil Corp. v. Rota-Cone Field Operating Co. , 1972-NMCA-167, 84 N.M. 483, 505 P.2d 78, writ quashed, 85 N.M. 636, 515 P.2d 640 (1973).
Limitation of employer's liability for injuries sustained by an employee covered by the Workmen's [Workers'] Compensation Act covers all instances where that injury is sought to be made the basis for further and additional liability by the employee or others in his behalf, and indirect liability for such injury is also foreclosed both by the terms of the act and because the employer's liability for such injury is not in tort. Beal v. Southern Union Gas Co. , 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Grants amnesty to employer where no indemnity contract. — The exclusive remedy provision of the Workmen's [Workers'] Compensation Act grants amnesty to an employer for all causes of action relating to employees' injuries, regardless of the question of independent breach of duty, where there is no express contract of indemnity. Royal Indem. Co. v. Southern Cal. Petroleum Corp. , 1960-NMSC-053, 67 N.M. 137, 353 P.2d 358.
Sexual harassment. — Plaintiff's injuries, resulting from sexual harassment in the workplace, were not barred by the exclusivity provisions of the Worker's Compensation Act. Coates v. Wal-Mart Stores, Inc. , 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.
The words "accident" or "accidental injury" should be liberally construed. Stevenson v. Lee Moor Contracting Co. , 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.
Claimant has burden of proving compensable accident. 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.
Applicability to intentional acts. — Exclusivity provisions of Workers' Compensation Law (Chapter 52, Article 1 NMSA 1978) apply to injury to claimant's hand caused by manager intentionally slamming locker door. Martin-Martinez v. 6001, Inc. , 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351.
Payment of compensation benefits by employer does not relieve claimant's burden of proving a compensable accident. 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; but see Perea v. Gorby , 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212; Medrano v. Ray Willis Constr. Co. , 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.
No due process right to greater disability benefits. — An injured worker does not have a due process property right to disability benefits greater than those conferred by the legislature. Casillas v. S.W.I.G. , 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981).
Employer may voluntarily relinquish statutory protection of limited liability. — Although the workmen's [workers'] compensation statute affords an employer release from unlimited liability in exchange for a limited amount of compensation for the injured employee, if the employer desires to voluntarily relinquish his statutory protection, he may do so. City of Artesia v. Carter , 1980-NMCA-006, 94 N.M. 311, 610 P.2d 198, cert. denied, 94 N.M. 628, 614 P.2d 545.
Employee's termination of employment due to disability deemed involuntary. — Where an employee's disability or inability to perform his former job on production causes him to quit the job, for purposes of determining his rights to compensation benefits, the employee did not voluntarily leave his employment. Aranda v. Mississippi Chem. Corp. , 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821.
Injury subsequent to discharge. — Workers' Compensation Law (Chapter 52, Article 1 NMSA 1978) is not automatically terminated by the firing or quitting of an employee, but applies to injury occurring during a reasonable period while employee winds up affairs and leaves premises. Martin-Martinez v. 6001, Inc. , 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351.
No recovery solely upon claim of payments during investigation period. — A claimant cannot base her recovery solely on the fact that the employer paid benefits during a period when the accident was under investigation. Romero v. S.S. Kresge Co. , 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co. , 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.
Claim must be against employer. — Claims based on the Occupational Disease Disablement Act or Workers' Compensation Act can be raised only against an employer. Garrity v. Overland Sheepskin Co. , 1996-NMSC-032, 121 N.M. 710, 917 P.2d 1382.
Injured employee may sue third party, other than the employer or an employee of the employer, for negligence in causing the injured employee's accident. Taylor v. Delgarno Transp., Inc. , 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445.
Third-party indemnity claim from employer not barred. — The public policy expressed in the workmen's [workers'] compensation statute does not bar a claim for indemnity by the third party from the employer where that claim is based on an express contract of indemnity. City of Artesia v. Carter , 1980-NMCA-006, 94 N.M. 311, 610 P.2d 198, cert. denied, 94 N.M. 628, 614 P.2d 545.
Accidental injury while employed, expenses due to problems exacerbated by injury, fulfills prerequisites. — Findings that plaintiff: (1) suffered an accidental injury while in the course and scope of his employment while inventorying and numbering air conditioners; and (2) incurred medical expenses due to symptomatic problems with his lower back exacerbated by the injury, included the necessary prerequisites for coverage under the Workmen's [Workers'] Compensation Act. DiMatteo v. County of Dona Ana , 1985-NMCA-099, 104 N.M. 599, 725 P.2d 575.
Cause of action for alleged bad faith not separate from claim. — Where plaintiff asserts that the defendant's alleged bad faith denial of plaintiff's claim for compensation was tortious conduct which delayed payment of compensation, and constitutes a basis for a cause of action by plaintiff against the defendant for deceit, bad faith and intentional infliction of emotional distress, the court held that these claims are not separate and distinct from the plaintiff's claim for workmen's [workers'] compensation benefits, and consequently, the award by the state court of compensation benefits to the plaintiff is a bar to the federal court action. Chavez v. Kennecott Copper Corp. , 547 F.2d 541 (10th Cir. 1977).
Worker's claim for intentional spoliation of evidence against his employer was not barred by the act's exclusive remedy provisions. Coleman v. Eddy Potash, Inc. , 1995-NMSC-063, 120 N.M. 645, 905 P.2d 185.
Satisfaction executed with compromise bars action. — Where the plaintiff attempts to bring this federal court action two years later for a claim of bad faith delay arising out of the very dispute which was compromised and settled and the proceeds of which have been retained by the plaintiff, since the receipt and satisfaction of judgment in the prior case stipulated that it was in satisfaction of any other claims against defendant, while the only action which had been pending was the workmen's [workers'] compensation action, this broad satisfaction executed as a part of a compromise settlement arises to an accord and satisfaction and bars the present action by the plaintiff. Chavez v. Kennecott Copper Corp. , 547 F.2d 541 (10th Cir. 1977).
Full knowledge essential for estoppel by acceptance of benefits. — In order to create estoppel by acceptance of workmen's [workers'] compensation benefits it is essential that the person against whom estoppel is claimed, should have acted with full knowledge of the facts and of his rights. Maynerich v. Little Bear Enters., Inc. , 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.
Reviewable conclusion of law. — Where conclusion that one has suffered an accident is based upon undisputed facts found by the court and incorporated in his decision, the conclusion is one of law, reviewable by the supreme court. Webb v. N.M. Publ'g Co. , 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.
Remedy in state court where employer ceases making payments. — Where plaintiff's employer ceases making payments under this act, and enters into a stipulation, approved by the state court, which contains a release of any and all liability whatsoever, where employer again ceases payment, the plaintiff's remedy is in the state court under the act and not in a federal court and is not separate and apart from the claims under the act, which is the exclusive remedy for the denial of a claim for compensation. Escobedo v. Am. Employers Ins. Co. , 547 F.2d 544 (10th Cir. 1977).
Where bad faith settlement alleged. — Plaintiff was injured in the course of his employment, and defendant commenced payment of compensation benefits, but after seven months, failed and refused to make further payments; whereupon, the plaintiff filed his claim in the state district court. A settlement was reached and upon a stipulation and joint motion, a judgment was entered by the state court in favor of the plaintiff. The stipulation for judgment contained a release of plaintiff's compensation claims and a release "of any and all other liability whatsoever kind and nature which has either been or could be made as involving or arising out of this proceeding, with the contemplation that any and all claims and proceedings be foreclosed and considered completely resolved and finalized . . . ." Judgment was entered January 15, 1975, and the new complaint was filed August 4, 1975, based on theory that the alleged bad faith of defendant in terminating the payments created a cause of action separate and apart from the claim for compensation which was settled in the state court proceeding and that the state court's disposition of plaintiff's claim is not a bar to this action. The trial court granted motion for summary judgment of dismissal on the grounds that the act clearly contemplates that an employer may deny a workman's [worker's] claim, but if he does, it provides the workman [worker] with a remedy. The remedy is the same whether the denial is made in good faith or bad faith. The act gives the workman [worker] the right to file his claim with the state district court and have the court adjudicate it, and this is the exclusive remedy for the denial of a claim for compensation. Escobedo v. Am. Employers Ins. Co. , 547 F.2d 544 (10th Cir. 1977).
Action by third party for negligence prohibited. — Where a third party plaintiff filed its complaint against third party defendant, alleging that the accident was caused by his negligence and was therefore a breach of contract, recovery of any judgment obtained against it over and from third party defendant, and, by a second count, sought similar recovery on the theory of an implied agreement for indemnity in the event of negligence, each of the actions was held prohibited by the exclusive remedy of this section. Royal Indem. Co. v. Southern Cal. Petroleum Corp. , 1960-NMSC-053, 67 N.M. 137, 353 P.2d 358.
Illegally employed minor not covered and may sue. — A contract, the performance of which violates a penal statute, is illegal and at least voidable, and will not provide a basis for the assertion of rights under such contract, particularly by the party upon whom the statute imposes the penalty; therefore, an illegally employed minor is not covered by the act and therefore may pursue a common-law action. Maynerich v. Little Bear Enters., Inc. , 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.
Stranger does not have contribution against employer where liable to employee. — Under New Mexico's Workmen's [Workers'] Compensation Act, a stranger to the employer-employee relationship who is liable to the employee for injuries received by the employee in the course of his employment does not have a right of contribution against the employer, even if the employer was also at fault. Sanchez v. Hill Lines, Inc. , 123 F. Supp. 42 (D.N.M. 1954).
Company not entitled to contribution from contractor paying under act. — Where contractor's employees were injured in the course of employment by a gas explosion and filed separate actions against the gas company, the gas company would not be entitled to indemnity on a contribution from the contractor since the contractor came within the Workmen's [Workers'] Compensation Act and had paid or was paying all obligations thereunder to employees, and contractor's liability was limited to that under the act in absence of the contract of indemnity between the contractor and the gas company. Beal v. Southern Union Gas Co. , 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.
Question of safety control and special employee for jury. — Where certain showings raised material issues of fact as to whether the safe operation of the crane which killed plaintiff's decedent was its lessor's work and as to whether the lessor had a right to control safety matters, summary judgment on these matters was improper, and whether crane operator was or was not a special employee of lessee in connection with safety matters in the operation of the crane was a factual question for the jury. Fresquez v. Southwestern Indus. Contractors & Riggers , 1976-NMCA-090, 89 N.M. 525, 554 P.2d 986, cert. denied, 90 N.M. 8, 558 P.2d 620.
Special employee within scope of act. — In action to recover damages for personal injury, plaintiff as a special employee of defendant was within the scope of Workmen's [Workers'] Compensation Act, whose remedies were exclusive and which extended its protection to persons who were not employees at common law. 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).
Not independent contractor. — Where under a contract of employment an employee was to load concentrates onto freight cars, at a price per ton, and hire his own helpers, but employer had right to discharge employee with or without cause to coerce employee in doing the work suitable to the employer, the employee was not an independent contractor, and was entitled to compensation for injuries. American Employers' Ins. Co. v. Grabert , 1935-NMSC-030, 39 N.M. 173, 42 P.2d 1116.
Compensation not affected because workman [worker] more susceptible. — That a workman [worker] may have been rendered more susceptible to injury than other workmen because of his physical condition cannot affect the compensability of the injury. Webb v. N.M. Publ'g Co. , 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.
Allowance of attorney fee. — Where insurance carrier had offered to pay the regular compensation but refused to pay the 50% additional compensation and employment of counsel became necessary to collect the additional amount, allowance of the attorney fee to the employee was proper. Janney v. Fullroe, Inc. , 1943-NMSC-042, 47 N.M. 423, 144 P.2d 145.
II. EMPLOYER COMPLIANCE.
Employee's remedies where employer fails to comply. — If the employer utterly fails to comply with the provisions of the Workers' Compensation Act (this article), such as by failing to obtain insurance or to properly file a certificate of insurance, the employee has two options: she may either file a workers' compensation action or file an action for common law remedies, to which she may attach a contract claim for wrongful discharge. Failure to comply with the act does not allow the employee to file both a workers' compensation action and a wrongful discharge action. Shores v. Charter Servs., Inc. , 1987-NMSC-109, 106 N.M. 569, 746 P.2d 1101.
Where an employer did not substantially comply with the filing provisions of the Workers' Compensation Act, the exclusive remedy provisions of this section and Sections 52-1-6 and 52-1-8 NMSA 1978 did not apply to bar a wrongful death action against the employer. Peterson v. Wells Fargo Armored Servs. Corp. , 2000-NMCA-043, 129 N.M. 158, 3 P.3d 135, cert. denied, 129 N.M. 207, 4 P.3d 35.
Delay in filing does not remove limitation on employer's liability. — A delay in filing, pursuant to Section 52-1-4 NMSA 1978 does not necessarily remove the limitations on the employer's liability found in Sections 52-1-6 and 52-1-8 NMSA 1978 and this section. Quintana v. Nolan Bros. , 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841.
A delay in filing pursuant to 52-1-4 NMSA 1978 does not remove the limitation on the employer's liability because the statutory purpose is met when the employer obtains compensation protection for his workmen. Quintana v. Nolan Bros. , 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841.
Employer interpretation permitting action against co-employees. — The highway commission insurance requirements evidence a desire to provide compensation for bodily injury and property damage; the contractor's employees are compensated by workmen's [workers'] compensation, members of the public in general are compensated by the public liability insurance, but the policy of the commission is only to provide this compensation and not to indemnify employees under Hockett v. Chapman , 1961-NMSC-163, 69 N.M. 324, 366 P.2d 850, interpretation of the Workmen's [Workers'] Compensation Law permitting actions against co-employees. Chavez v. Pino , 1974-NMCA-071, 86 N.M. 464, 525 P.2d 391.
Temporary helpers' coverage purchased at employer's expense. — Employer's indirect payments to a temporary help service were sufficient to invoke the protections of the exclusive remedy provisions against a temporary worker who sued the employer, where insurance coverage had been purchased by the service for the worker at the employer's expense. Garcia v. Smith Pipe & Steel Co. , 1988-NMCA-078, 107 N.M. 808, 765 P.2d 1176, cert. denied, 107 N.M. 673, 763 P.2d 689.
A temporary employer was immune from a common law tort claim of a temporary employee since it met the test of special employer; it had contractually assured that the general employer would provide workers' compensation coverage, and the temporary employee had signed a contract agreeing to look to the general employer for his remedy for on-the-job injuries. Vigil v. Digital Equip. Corp. , 1996-NMCA-100, 122 N.M. 417, 925 P.2d 883, cert. denied, 122 N.M. 279, 923 P.2d 1164.
III. SERVICE 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 that claimant is employee. — To obtain benefits under the Workmen's [Workers'] Compensation Act, the claimant has the burden of establishing that he is an employee. Dibble v. Garcia , 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.
Burden after claimant raises inference of 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, it having denied those facts, 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).
Presumption of fact as to accident in employment. — 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).
"Arising out of " construed. — For an injury to "arise out of" the employment, there must be showing that the injury was caused by a risk to which the worker was subjected by his employment; the employment must contribute something to the hazard of the injury. Schober v. Mountain Bell Tel. , 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231; Velkovitz v. Penasco Indep. Sch. Dist. , 1981-NMSC-075, 96 N.M. 577, 633 P.2d 685; Losinski v. Corcoran, Barkoff & Stagnone, P.A. , 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.
An injury arises out of the employment when it is caused by a risk to which the worker is subjected in the employment. Sena v. Cont'l Cas. Co. , 1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794.
A miner's injury, which was sustained after returning to a recently blasted work area when a large rock fell on his foot, arose out of his employment, despite the fact that the miner failed to use a scaling bar, as required by state and federal regulation, prior to his return to secure the work area. This determination was supported by the introduction of evidence that rock falls are one of the leading causes of mining accidents and occur even after the barring down of the blasted area. Garcia v. Homestake Mining Co. , 1992-NMCA-018, 113 N.M. 508, 828 P.2d 420, cert. denied, 113 N.M. 488, 827 P.2d 1302.
The principles "arising out of" and "in the course of employment" within the meaning of the Workmen's [Workers'] Compensation Act must coexist at the time of the injury in order that an award be sustained. These terms are not synonymous: the former relates to the cause of the injury and the latter refers to the time, place and circumstances under which the injury occurred. The injury must be reasonably incident to the employment or one flowing therefrom as a natural consequence. Walker v. Woldridge , 1954-NMSC-027, 58 N.M. 183, 268 P.2d 579; Wilson v. Richardson Ford Sales, Inc. , 1981-NMSC-123, 97 N.M. 226, 638 P.2d 1071.
It is not enough that the injury arose in the course of employment. For an injury to be compensable within the Workmen's [Workers'] Compensation Act it must "arise out of" and in the course of employment and not be willfully suffered or intentionally inflicted. Walker v. Woldridge , 1954-NMSC-027, 58 N.M. 183, 268 P.2d 579.
Whether an injury occurs in the course of employment relates to the time, place and circumstances under which the accident takes place. Sena v. Continental Cas. Co. , 1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794.
Requirements for "arising out of" and "in the course of employment". — "Arising out of" and "in the course of employment" are two distinct requirements; in order for a claimant to be entitled to compensation, both of the requirements for "arising out of" and "in the course of employment" must be met. In determining whether an injury arose out of the worker's employment, the cause of the accident must be determined; injuries "arising out of" employment typically include those occurring during acts the worker was specifically instructed to perform by the employer and acts incidental to the worker's assigned duties. "In the course of employment" relates to the time, place, and circumstances under which the accident takes place; injuries occurring during the "course of employment" take 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. 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, and where worker was abruptly attacked by her son causing injury to worker's arm, worker's employment duties overlapped significantly with the services she provided as a mother or natural support; evidence showed that worker was providing services that could have been provided in either of her two roles, but the fact that the injury occurred outside her scheduled work hours, the evidence was sufficient to support the worker's compensation judge's conclusion that worker's injury did not "arise from" or occur "in the course of employment." Begay v. Consumer Direct Personal Care , 2015-NMCA-025, cert. denied, 2015-NMCERT-002.
Off-duty police officers responding to emergency circumstances. — Emergency actions taken by off-duty police officers in response to emergency circumstances constitute actions arising out of and in the course of their employment as police officers if on-duty police officers would take the emergency actions in response to the emergency circumstances in the course of their employment. Schultz v. Pojoaque Tribal Police Dep't , 2014-NMCA-019.
Where a police officer, who was off-duty and voluntarily chaperoning a church youth group trip to a recreational area on the Rio Grande River, was drowned while rescuing a child who was under the officer's supervision and who had fallen into the river; the officer was not on-call or in uniform; and the incident occurred outside the officer's jurisdiction, the officer's death arose out of and in the course of the officer's employment because there was a sufficient nexus between the officer's actions in rescuing the child and the duties of the officer's employment as a police officer. Schultz v. Pojoaque Tribal Police Dep't , 2014-NMCA-019.
Service performed as material, not primary purpose of trip. — Where claimants were members of a drilling crew, and, at the request of the tool pusher, were cooperating in pushing the tool pusher's car down the road, an accident occurred, injuring some of the employees and it was held that certain of the employees were "literally in the course of their employment," it is the service to be performed for the employer that is material, not what may be the dominant or primary purpose of the trip. Brown v. Arapahoe Drilling Co. , 1962-NMSC-051, 70 N.M. 99, 370 P.2d 816.
Going to and from work not in course of employment. — A case of injury arising out of and in the course of employment was not established by the facts present in this case, where the plaintiff in going to and from work was not in the performance of service arising out of or in the course of his employment, his duties in behalf of the employer had terminated for the day, he was not being compensated for his time spent en route between the place of work and his home, the accident did not occur on the employer's premises, nor did plaintiff's duties require his presence at the place where the accident occurred, and the risk which caused the accident was one common to the traveling public and was not created by his employment. Rinehart v. Mossman-Gladden, Inc. , 1967-NMSC-022, 77 N.M. 470, 423 P.2d 991.
Compensation is not allowed if an injury occurs while the workman [worker] is on his way to assume the duties of his employment or after leaving such duties. 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.
Although courts have consistently resolved reasonable doubts in favor of the employee in many borderline areas, they have not extended this liberal treatment to the on-premises injury occurring before the work-day commences or as it ends. Gonzales v. N.M. State Hwy. Dep't , 1981-NMCA-077, 97 N.M. 98, 637 P.2d 48, cert. quashed, 97 N.M. 621, 642 P.2d 607, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co. , 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.
As a general rule injuries sustained by an employee while on the way to assume the duties of employment or after leaving such duties are not compensable. Rinehart v. Mossman-Gladden, Inc. , 1967-NMSC-022, 77 N.M. 470, 423 P.2d 991.
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.
The basic principle or premise underlying "exceptions" to going and coming rule and the clue to their proper limits is found in the principle that the injury is compensable only where the journey is an inherent part of the service for which the employee is compensated or where the travel itself is a substantial part of the service performed. Rinehart v. Mossman-Gladden, Inc. , 1967-NMSC-022, 77 N.M. 470, 423 P.2d 991.
Intentional acts by employer. — Injury arising out of sexual harassment was not barred by the exclusivity provisions of this section, where there was evidence that the employer acted intentionally in subjecting employee to the harassment risk. Coates v. Wal-Mart Stores, Inc. , 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.
When assault on employee deemed in course of employment. — Where plaintiff, although not required to live on the employer's premises, had no reasonable alternative and was required while living there to help fight fires and participate in search and rescue, plaintiff's injuries resulting from an assault and rape in her residence by one of the mentally retarded students at the employer's facility arose out of and in the course of her employment. Arnold v. State , 1980-NMCA-030, 94 N.M. 278, 609 P.2d 725, cert. denied, 94 N.M. 674, 615 P.2d 991.
Injury caused by sexual harassment is not an accident arising out of and in the course of employment. Coates v. Wal-Mart Stores, Inc. , 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.
Question of law where facts not disputed. — Where the facts are not in dispute, it is a question of law whether an accident arises out of and in the course of employment. Losinski v. Corcoran, Barkoff & Stagnone, P.A. , 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.
Review of conclusion that accident arose out of employment. — The conclusion of law that the accident arose out of the course of employment is freely reviewable. Losinski v. Corcoran, Barkoff & Stagnone, P.A. , 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.
Claimant's testimony as only evidence supporting trial court's finding remains undisturbed on appeal. — Where claimant's testimony is the only evidence which has a bearing on the cause of the accident and if her statement will support the trial court's finding that her injury arose out of and in the course of her employment, the finding shall not be disturbed on appeal. 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.
Reasonable inference that employee met accident on the job permissible. — If there are any facts and circumstances sufficient to raise a reasonable inference that the e

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