The Workers' Compensation Administration issued a number of interesting opinions that were appealed this year, dealing with the combining of impairments; the analysis for determining whether alcohol use results in a diminution or complete bar to recovery; several cases concerning the extent of and limitation on the WCA's "exclusive remedy;" and WCA jurisdiction over claims arising on property wholly owned and operated by an Indian Tribe.
Jojola v. Fresenius Medical Clinic, et al., 2010-NMCA-101, __ N.M. __ (Sep. 21, 2010) (internal quotations and/or citations omitted), cert. not applied for.
Upholding workers’ compensation judge (WCJ) in not combining a work-related impairment of Worker’s left leg with a pre-existing impairment in Worker’s right leg, to award scheduled benefits for the right leg impairment. Normally, when a preexisting condition combines with a work-related injury to cause a disability, an employee is entitled to benefits commensurate with the total disability sustained. However, here , Worker did not seek combination of the new injury with the preexisting injury, and she failed to show a direct causal connection between the preexisting right knee condition and the work-related injury.
May v. DCP Midstream, L.P. et al., 2010-NMC-087, __ N.M. __ (Jul. 30, 2010), cert. granted Sep. 27, 2010.
A claim for injury is not removed from the “exclusive remedy” of the Workers’ Compensation scheme where an employer modified an ordinary “ gas pipe inspection gauge receiver” or “pig receiver” to accommodate much larger “smart pigs.” Although “there is little doubt that Defendants were negligent, perhaps even grossly negligent, … Defendants did not exhibit conduct of the same level of callousness and egregiousness exhibited by the employer in Delgado.” Specifically, here the Defendant’s conduct was not profit motivated, and the Worker was performing a routine, familiar task for which he was trained, even though it was done on unsafe modified equipment on which he was not trained
Villa v. City of Las Cruces, 2010-NMCA-099 (Jul. 22, 2010), cert, den. Sep. 23, 2010.
Court notes an inconsistency between § 52-1-11, providing for a complete bar to compensation where a Worker’s injury was “occasioned by” (or proximately caused by) intoxication, and § 52-1-12, providing for only a 10% reduction where intoxication is merely a “contributing cause to the injury.” Specifically, the Court found a contradiction because under normal tort law principles, proximate causation does not require an incident be the sole cause, but merely a contributing factor. See UJI 13-305 NMRA. Court concludes that under the Workers’ Compensation scheme, the Legislature intended a weighing analysis like that performed by the Workers’ Compensation Judge (WCJ): although the instant Worker was intoxicated, he did not thereby willfully injure himself and the injury was not occasioned by the intoxication to the extent that the slip on a narrow ledge could have occurred to any worker; nonetheless, the intoxication did contribute to the extent that the worker had the accident and was unable to catch himself, unlike the coworker that was working on the same narrow ledge.
Quintero v. State of New Mexico Department of Transportation, 2010-NMCA-081, __ N.M. __ (Jul. 8, 2010), cert granted Aug. 31, 2010.
A State clerical worker is not limited to the “exclusive remedy” of the Workers’ Compensation scheme, where she is injured as a result of alleged negligence of a different State agency, while commuting through the public “Park and Ride” transportation to her job in Santa Fe. Section 52-1-19 provides an exception to the “going and coming” bar where the employer’s negligence was a proximate cause of injury, “unless the context otherwise requires,” which it does here. Specifically, the DOT has and admits a duty to maintain the parking lot where the Worker was injured, while Worker’s use of the parking lot was totally unrelated to her duties with her employer agency, Dept. of Public Safety. Thus, the Worker’s status as a DPS employee is completely separate and distinct from her status as a commuter.
Antonio v. Inn of the Mountain Gods Resort and Casino, 2010-NMCA-077, __ N.M. __ (May 13, 2010), cert. den. Jul. 13, 2010.
The Workers Compensation Administration does not have jurisdiction where a Worker is injured in the course of employment at Ski Apache, a division of the Inn of the Mountain Gods Resort and Casino, which is wholly owned and operated by the Mescalero Apache Tribe, a federally recognized Indian tribe. This is so even though the suit results from commercial activity occurring off the Tribe’s reservation and on federal land located in the State of New Mexico, because the Tribe has not expressly waived sovereign immunity as required under U.S. Supreme Court precedent.
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