As a labor/employment mediator, arbitrator and ALJ, I strive to keep abreast of--and inform my readers of noteworthy labor and employment cases. Although the Workers Comp
Administration in New Mexico maintains its own stable
of mediators and ALJs, I like to keep up with this area of law also,
mostly because the issues that arise are so darn interesting. Two
recent cases highlight that.
In Castillo v. Caprock Pipe & Supply, Inc., 2012-NMCA-085 (cert. den.), Employee
contracted and died from a disease (psittacosis) contacted from
exposure to roosting pigeons while working as a warehouse laborer at
Caprock Pipe & Supply, Inc., an oilfield supply business. His estate filed a wrongful death suit
in civil court and employer sought to dismiss it under the exclusivity
provisions of the Workers Compensation Act (WCA) or Disease Disablement
Law (Disablement Law).
The Court concluded Employee Castillo's injury and death did not fall within the exclusivity provisions of the Disablement Law, because there was insufficient causation to categorize his disease as occupational. Under § 42-3-32, the defined occupational diseases are "deemed to arise out of the employment only if there is a direct causal connection between the conditions under which the work is performed and the occupational disease and which can be seen to have followed as a natural consequence of the work as a result of the exposure occasional by the nature of the employment... " Id. Thus, the Disablement Law "clearly requires the disease to be closely related to the nature of the employment." Castillo, ¶ 5. In other words, "the disease must be one due wholly to causes and conditions which are normal and constantly present and characteristic of the particular occupation[.]" Id. [internal citations omitted]. However, here there was "no evidence .. that pigeons or psittacosis are incidental to the character of the oil field supply business or such businesses that employe people within warehouses." Id, ¶ 6.
Nonetheless, the Court concluded the Employees injury and death were covered by the WCA. First, it concluded the injury/exposure arose "in the course of" employment, rejecting the Estate's argument that "roosting pigeons where unrelated to Castillo's job," except by location. The Court concluded that under New Mexico case law, "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."
Next, the Court concludes that the injury/exposure "arose out of" Castillo's employment. Here, the Court paid more shrift to the unusual circumstances of the exposure. The Estate had argued that Castillo's injury was not related to his job duties, that roosting pigeons was not an "inherent part of one's job as a warehouse laborer at an oilfield supply business," and that contacting psittacosis from roosting pigeons was "not a rational consequence of being a warehouse laborer." Id, ¶ 11. However, when exposed to the pigeon feces, the Employee was performing activities instructed to do by his employer, and these were not abnormal or non-work-related duties. Additionally, the Court concluded causation was not "negated" by the unusual circumstances associated with the environmental condition of pigeon feces, since it "was because of his employment taht Castillo contracted the disease and died." Id, ¶¶ 13, 15.
In Cordova v. KSL-Union and CMSI, 2012-NMCA-083 (cert. den.), a union Employee was injured after he had already begun the paperwork and preparations for retirement. Thereafter, he retired prior to reaching maximum medical improvement (MMI), at which time the Employer declined to offer his a new job at equal or greater wage. At the time of retirement, Employee received his maximum retirement benefit and additional time working for the union would not increase his retirement pension. Moreover, under the terms of the retirement, "he was required to terminate his employment with Employer effective the date he chose to retire, and he was prohibited from working as a union member at any time in the future." Id., ¶ 3. After MMI, he was offered a position as a non-union foreman for another company, but could not accept it because of his injuries.
The Workers Comp Judge (WCJ) entered a ruling that the Employee was entitled to "modifier-based permanent partial disability" (PPD), meaning PPD enhanced for age, education, skills, etc. Under § 52-1-26(D) and case law, an employee's disability rating shall not be subject to such modifications if the employee returns to work at a wage greater or equal to the pre-injury wage, or if he unreasonably refuses such work. The WCJ concluded this section did not apply because the Employer did not offer a job at reater or equal the pre-injury wage.
The Court of Appeals rejected this reasoning, holding the Employer was not required by statute to make such a job offer. However, the Court concluded the WCJ's ultimate ruling--award of modifier-based PPD benefits---was nonetheless correct because the Employee's reasons for not accepting other jobs at greater or equal the pre-injury wage were reasonable: (a) he would gain nothing by delaying retirement, (b) he could not work a union job once retired, and (b) he could not perform the non-union jobs offered due to his injury.
The Employer argued it should not be liable to pay modifier-based PPD benefits "because Worker voluntarily removed himself from the workforce," and "[t]he terms of [his] retirement effectively prevented Employer from offering employment to Worker to reduce its liability." The Employer also argued that "the decision to retire was reasonable only from Worker's financial perspective." The Court disagreed, noting there is nothing in case law "which requires a worker to consider the employer's interest in deciding whether to accept the employer's offer," and the Employee "would gain nothing by remaining at his union employment with Employer because he was already going to receive his maximum retirement benefit." The Court added that "[w]hile Worker chose to retire, he did not choose to get injured, nor did he choose when he would get injured."
If you have any labor
or employment matters
that you would like to resolve privately through a knowledgeable and experienced
arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505)
247-0802, or info@pilarvailepc.com.
