A. As used in the Workers' Compensation Act, unless the context otherwise requires, "worker" means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business. The term "worker" shall include "employee" and shall include the singular and plural of both sexes. "Worker" includes public employee, as defined in the Workers' Compensation Act, including salaried public officers.

B. For the purposes of the Workers' Compensation Act, an individual who performs services as a qualified real estate salesperson shall not be treated as an employee and the person for whom the services are performed shall not be treated as an employer.

C. For the purpose of Subsection B of this section, a "qualified real estate salesperson" means an individual who:

(1) is a licensed real estate salesperson, associate broker or broker under contract with a real estate firm;

(2) receives substantially all of his remuneration, whether or not paid in cash, for the services performed as a real estate salesperson, associate broker or broker under contract with a real estate firm in direct relation to sales or other output, including the performance of services, rather than to the number of hours worked; and

(3) performs services pursuant to a written contract between himself and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to such services.

History: 1953 Comp., § 59-10-12.9, enacted by Laws 1965, ch. 295, § 9; 1979, ch. 199, § 3; 1986, ch. 17, § 1; 1989, ch. 263, § 12.

Cross references. — For work not casual employment, see 52-1-22 NMSA 1978.

I. GENERAL CONSIDERATION.

Basic purpose of the Workmen's [Workers'] Compensation Act is to ensure that industry carries the burden of personal injuries suffered by workmen in the course of their employment, and consequently, the relationship of the parties is not to be determined from the name attached to it by them, but from the consequences which the law imputes to their agreement to prevent evasion of the obligations which the act imposes upon employers. Yerbich v. Heald, 1976-NMCA-026, 89 N.M. 67, 547 P.2d 72.

What is reasonably incident to the employment depends upon the practices permitted in the particular employment and on the customs of the employment environment generally. Whitehurst v. Rainbo Baking Co., 1962-NMSC-126, 70 N.M. 468, 374 P.2d 849 (decided under former law).

Meaning of "work" under this act differs from meaning under Minimum Wage Act. — In arguing the meaning of "work" in the context of the Minimum Wage Act, workmen's [workers'] compensation cases should not be considered because they deal with statutory definitions which differ from the definitions in the Minimum Wage Act. Garcia v. American Furniture Co., 1984-NMCA-090, 101 N.M. 785, 689 P.2d 934, cert. denied, 101 N.M. 686, 687 P.2d 743 and 102 N.M. 7, 690 P.2d 450.

Definition of "workman" [worker] must be satisfied for Act to apply. — Although a school admitted that a student was acting as its agent or employee when an accident occurred, this admission does not by itself invoke the Workmen's [Workers'] Compensation Act if the Act's statutory definition of a "workman" [worker] is not otherwise satisfied. Trembath v. Riggs, 1983-NMCA-152, 100 N.M. 615, 673 P.2d 1348, cert. denied, 101 N.M. 11, 677 P.2d 624, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

The words "employer and employee" as used in the New Mexico Workmen's [Workers'] Compensation Act are used in their natural sense and intended to describe the conventional relation between the employer who pays wages to an employee for his labor. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308; Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Statutory definition of workman [worker] does not include public officer or official, and election judge who was injured delivering ballot boxes was ruled a public officer and barred from collecting workmen's [workers'] compensation. Candelaria v. Board of Cnty. Comm'rs, 1967-NMSC-037, 77 N.M. 458, 423 P.2d 982 (decided under former law).

Volunteer is not entitled to benefits of workmen's [workers'] compensation laws. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

Appellant must be employed by county in order to sue county under the Workmen's [Workers'] Compensation Act. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Question of fact distinguished from conclusion of law. — The question of whether the claimant worked for one or the other of the corporations is one of fact, as distinguished from the question of whether the relationship of master and servant or that of an independent contractor existed, which is a conclusion of law. Creley v. Western Constructors, Inc., 1969-NMSC-004, 79 N.M. 727, 449 P.2d 329.

It is for trier of facts to determine weight to be given to evidence and the credibility of witnesses. Creley v. Western Constructors, Inc., 1969-NMSC-004, 79 N.M. 727, 449 P.2d 329.

Workmen's [Workers'] Compensation Act is based upon employer-employee relationship. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Action against co-employee or person other than employer. — Prior to the 1971 amendment it was held that a co-employee was "a person other than the employer" against whom a negligence action for damages might be maintained. Hockett v. Chapman, 1961-NMSC-163, 69 N.M. 324, 366 P.2d 850.

Liability of partnership's insurer for injuries to working partner. — Under the terms of the New Mexico Compensation Act, if a partnership, as employer, was not liable for injuries to a working partner then its insurer was not liable under the act through a contractual relationship between the insurance agent, the insurance company and the partnership. Jernigan v. Clark & Day Exploration Co., 1959-NMSC-033, 65 N.M. 355, 337 P.2d 614 (decided under former law).

As working partner and, hence, occupying status of employer, plaintiff was not covered by the Workmen's [Workers'] Compensation Act of New Mexico. Jernigan v. Clark & Day Exploration Co., 1959-NMSC-033, 65 N.M. 355, 337 P.2d 614 (decided under former law).

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.

Coffee breaks consented to by employer. — Coffee breaks for the personal comfort of employees during working hours are consented to by the employer. Whitehurst v. Rainbo Baking Co., 1962-NMSC-126, 70 N.M. 468, 374 P.2d 849 (decided under former law).

II. EMPLOYMENT STATUS.

Employer-employee relationship, to which the act applies, is one created by contract between the parties; consequently, if the employer in this case seeks to avail itself of the Workmen's [Workers'] Compensation Act as a bar to a common-law action, then it must show a valid contract of employment between it and the minor employee. Maynerich v. Little Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.

Primary test to determine employment status is the right to control the details of the work. Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, cert. denied, 89 N.M. 206, 549 P.2d 284.

The principal test for determining whether an employer-employee relationship exists, as opposed to an independent contractor relationship, is whether the employer has the right to control the details of the work. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

The right to control is a test for determining an employer-employee relationship. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

One of the tests of relation of employer and employee is that the employer retains the right to direct the manner in which his business shall be done and the result to be accomplished. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Factors considered in determining right to control. — Factors to be considered in determining whether the right to control exists are: (1) the right or exercise of control of the details of the work; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Professionals. — The control test is not helpful in determining the employment status of a professional, such as a doctor, lawyer, nurse, or accountant. A professional who gives full-time, exclusive services to a business should not be excluded from the definition of "employee" under the Workers' Compensation Act simply because no one in the business has the skills to oversee the details of the professional's work. Whittenberg v. Graves Oil and Butane Co., Inc., 1991-NMCA-142, 113 N.M. 450, 827 P.2d 838, cert. denied, 113 N.M. 352, 826 P.2d 573 (1992).

Power of discharge is only one item to be considered in determining whether an individual is an employee and whether that item is of primary importance depends on the circumstances of the case. Yerbich v. Heald, 1976-NMCA-026, 89 N.M. 67, 547 P.2d 72.

Method of payment is merely one of the subordinate factors considered in the right to control test. This factor can be outweighed by other factors. The mere payment of wages is not sufficient to establish the employer and employee relationship. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Length of time in work does not change test. — Whether the injured person had been doing this work for five or 50 minutes, and whether he would have continued in this work for a shorter or greater length of time in no way changes the test. The test is: whose work was being done at the time of the accident? Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, cert. denied, 89 N.M. 206, 549 P.2d 284.

Limited control usually creates independent contractor relationship. — Where control is limited to the ultimate results to be achieved under a contract, the relationship is usually that of an independent contractor. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Mutuality of obligations and agreement required. — To establish the relationship of employer-employee, there must exist a mutuality of obligations and agreement. There must be present both a duty of employee to perform services subject to an employer's right to control the details of performance, and the worker's right to receive compensation. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

Mutual assent required. — Existence of the relationship of employer and employee depends upon a contract of employment and cannot exist without mutual assent, express or implied. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

"Relative nature of the work" test is another method for determining an employer-employee relationship. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

As to the factors which make up the "relative nature of the work" test, see Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Hope of future employment alone is insufficient evidence to show a contract for hire. Jelso v. World Balloon Corp., 1981-NMCA-138, 97 N.M. 164, 637 P.2d 846.

Findings to support conclusion of employee. — The trial court's findings that deceased was paid by the hour, had taxes withheld from his pay, had entered into a contract of hire and could be discharged any time defendant felt his work was unsatisfactory, support the conclusion that deceased was defendant's employee and therefore covered under the Workmen's [Workers'] Compensation Act. Abbott v. Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404.

There is no single or sure criterion affording test of when relationship is that of employee and when that of an independent contractor, and "a fact found controlling in one combination may have a minor importance in another." Nelson v. Eidal Trailer Co., 1954-NMSC-051, 58 N.M. 314, 270 P.2d 720 (decided under former law).

Principal factor to be considered in determining whether individual is employee or an independent contractor in workmen's [workers'] compensation is the power on the part of the employer to control, which may be inferred from: (1) control of the manner and means of performance, (2) the right to discharge at will and (3) the method of payment (i.e., lump-sum, piece-rate, periodic wages), among other things. A second factor to be considered is whose work is being done; that is, is it a separate piece of work or an integral part of the employer's business. Consequently, summary judgment in favor of defendant, owner of a lumber business, was reversed so the relationship between him and the owner of a log-hauling truck driven by deceased could be determined at trial, so as to determine whether plaintiff's deceased was an employee of the lumber business. Yerbich v. Heald, 1976-NMCA-026, 89 N.M. 67, 547 P.2d 72.

Chief consideration which determines one to be independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for. Shipman v. Macco Corp., 1964-NMSC-091, 74 N.M. 174, 392 P.2d 9 (decided under former law).

Company not liable for death of independent contractor's helper. — Where contract between truck loader and manufacturing company left the time and manner of performance and the hiring and payment of extra help to the discretion of the loader, loader was an independent contractor, and manufacturer was not liable for workmen's [workers'] compensation for death of loader's employee. Nelson v. Eidal Trailer Co., 1954-NMSC-051, 58 N.M. 314, 270 P.2d 720 (decided under former law).

Military institute instructor not employee when piloting rented aircraft. — Evidence supported findings that army sergeant who had instructed in military institute's department of military science and tactics was not an employee of the institute with respect to his piloting of a rented aircraft in a tactical exercise which crashed resulting in his death. Lance v. N.M. Military Inst., 1962-NMSC-066, 70 N.M. 158, 371 P.2d 995.

Messenger who delivered ballot boxes to county clerk was independent contractor, and the statutory definition of workman [worker] does not include an independent contractor. Messenger, therefore, was not an employee, and not entitled to workmen's [workers'] compensation. Candelaria v. Board of Cnty. Comm'rs, 1967-NMSC-037, 77 N.M. 458, 423 P.2d 982.

Citizen aiding peace officers entitled to benefits. — Aiding peace officers in quelling riots and coping with unlawful assemblies and other dangerous situations where citizen has been impressed into service entitles the citizen to compensation benefits if he is injured in the course of rendering such assistance. Eaton v. Bernalillo Cnty., 1942-NMSC-040, 46 N.M. 318, 128 P.2d 738.

Injured work-release program prisoner deemed "employee". — A prisoner who voluntarily participated in a work-release program and was injured while under the direction of a private business was an employee of that business and thus entitled to workers' compensation benefits. Benavidez v. Sierra Blanca Motors, 1995-NMCA-140, 120 N.M. 837, 907 P.2d 1018, rev'd in part on other grounds, 1996-NMSC-045, 122 N.M. 209, 922 P.2d 1205.

Claimant, an inmate in the custody of the New Mexico department of corrections, who was injured while participating in an inmate work-release program, qualified as an "employee" eligible for benefits from his employer under this article. Benavidez v. Sierra Blanca Motors, 1998-NMCA-070, 125 N.M. 235, 959 P.2d 569.

Inmate whose work-release assignment was comprised of six weeks of a regular, forty hour per week schedule was not a "purely casual" worker within the meaning of this section, and was not disqualified from workers' compensation benefits in the event of injury. Benavidez v. Sierra Blanca Motors, 1998-NMCA-070, 125 N.M. 235, 959 P.2d 569.

III. SPECIAL EMPLOYEE.

Controlling factor whether servant of employer can be special servant of another. — In the case of Weese v. Stoddard, 1956-NMSC-117, 63 N.M. 20, 312 P.2d 545, in considering the test for determining whether a general servant of one employer can become the special or particular servant of another, the court said: "The controlling factor in determining this question is: Whose work is being performed and who controlled and directed the agent in his work?" Brown v. Pot Creek Logging & Lumber Co., 1963-NMSC-172, 73 N.M. 178, 386 P.2d 602 (decided under former law).

Special employee of one though employed by another. — Where plaintiff performed the duties of defendant, although employed by another company, for compensation, and injured himself, and was under the control and supervision of defendant, he is a workman [worker] under this section and became a special employee of defendant. Length of time of employment is not the test: the test is whose work is being done at the time of the accident, and who has the right to control the details of the work. Because plaintiff performed defendant's activities and duties, it was not a casual employment and was not an exception to this rule. Barger v. Ford Sales Co., 1976-NMCA-014, 89 N.M. 25, 546 P.2d 873, cert. denied, 89 N.M. 206, 549 P.2d 284.

Special temporary employees could recover. — Where a buyer of water from another state loaned his employees to the seller in this state to repair a well, the employees became special temporary employees of seller and could recover for injuries sustained during the repair work under the compensation law only. The act extended to persons 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) (decided under former law).

Employee injured during off-duty hours while working for another. — Where claimant was regularly employed by the defendant corporation, but the particular work or employment giving rise to injury was undertaken on off-duty hours from the regular job, he was doing work for another corporation away from the premises of his regular employer and was so engaged when his injury occurred, then claimant was a special employee of the other corporation. Brown v. Pot Creek Logging & Lumber Co., 1963-NMSC-172, 73 N.M. 178, 386 P.2d 602 (decided under former law).

Special employee negligence action barred by act. — Where plaintiff employee of oil well driller was asked by employee of driller hired to supply cement for an oil well to help unclog hose and was injured, he was a special employee and his negligence action was barred under Workmen's [Workers'] Compensation Act. Wuertz v. Howard, 1966-NMSC-264, 77 N.M. 228, 421 P.2d 441.

Basis for determining whether one is special employee so that negligence action is barred by Workmen's [Workers'] Compensation Act is: whose is the work being done? In answering this question, the power to control the work is of great importance. Wuertz v. Howard, 1966-NMSC-264, 77 N.M. 228, 421 P.2d 441.

Status of special employment is not dependent on the accident happening on the premises of the special employer. Wuertz v. Howard, 1966-NMSC-264, 77 N.M. 228, 421 P.2d 441.

Consent does not bar employee from becoming special employee of another. Wuertz v. Howard, 1966-NMSC-264, 77 N.M. 228, 421 P.2d 441.

Novice at a monastery was not a "worker" for purposes of workers' compensation. Joyce v. Pecos Benedictine Monastery, 1995-NMCA-054, 119 N.M. 764, 895 P.2d 286.

Casual employment not for purpose of employer's business. — Where plaintiff was hired as an extra man for a specific day, did not know for which corporation he was employed and was injured while performing work for the benefit of a corporation other than that by which he was hired, plaintiff was a person whose employment was "purely casual" and not for the purpose of the employer's trade or business. Barber v. Los Alamos Beverage Corp., 1959-NMSC-007, 65 N.M. 323, 337 P.2d 394 (decided under former law).

Not casual employment where necessary part of process. — Where the decedent was hauling away dirt obtained from the excavation of a pond by defendant, and the hauling of dirt was a necessary part of the process of excavation, the decedent was not a casual employee. This work, which was not casual employment under 52-1-22 NMSA 1978, was also not casual employment under this section. Abbott v. Donathon, 1974-NMCA-073, 86 N.M. 477, 525 P.2d 404.

Principal factors when performing duties for state court, in determining the status of an employee, are the power of appointment and removal and the fixing of salaries, not the fact that the employee may be paid from the fund of a lesser political entity. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Deputy district court clerk not county employee. — In workmen's [workers'] compensation suit, plaintiff, a deputy district court clerk and juvenile probation officer who was appointed by the district court judge and was under the supervision and control of the district judge and district court clerk, was not considered a county employee under the Workmen's [Workers'] Compensation Act where county commissioners neither appointed him nor exercised any supervision or control of his duties, notwithstanding the argument that the district court fund was a county fund. Perea v. Board of Torrance Cnty. Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308.

Public officers not entitled to benefits. — Prior to 1972, members of the New Mexico state labor and industrial commission, the state fair commission, the racing commission and the livestock board, were all public officers, not employees, and not entitled to benefits under this act. 1968 Op. Att'y Gen. No. 68-109 (rendered under former law).

Mounted patrol members eligible. — Members of the mounted patrol who have been duly called out by members of the state police are eligible for workmen's [workers'] compensation coverage. Whether they are in fact covered by the workmen's [workers'] compensation policy now in effect for the state police is a question that can only be answered by reference to the policy. If the policy covers only regularly appointed, active members of the state police, it probably does not cover persons who are deputized to assist the state police. On the other hand, if it includes all persons who may be called out to assist the state police, such as members of the mounted patrol or members of the state police reserve, then such persons are covered. 1960 Op. Att'y Gen. No. 60-239 (opinion rendered under former law).

Law reviews. — For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation § 116 et seq.

Employees within provisions applicable to operation of railroads, 7 A.L.R. 1160.

Compensation for death of or injury to peace officer employed in private plant, 8 A.L.R. 190.

Constitutionality of provisions of Workmen's Compensation Act applicable to public officers or employees, 53 A.L.R. 1290.

Compensation for injuries received in connection with air navigation, 83 A.L.R. 403, 99 A.L.R. 173, 155 A.L.R. 1026.

Needy persons put to work by municipality or other public body as means of extending aid to them as within protection of compensation act, 96 A.L.R. 1154, 127 A.L.R. 1483.

Musicians and other entertainers as employees of hotel or restaurant in which they perform, within Workmen's Compensation Act, 158 A.L.R. 915, 172 A.L.R. 325.

Constitutional or statutory provision referring to "employees" as including public officers, 5 A.L.R.2d 415.

Workers' compensation: student athlete as "employee" of college or university providing scholarship or similar financial assistance, 58 A.L.R.4th 1259.

Workers' compensation: injuries incurred during labor activity, 61 A.L.R.4th 196.

Ownership interest in employer business as affecting status as employee for workers' compensation purposes, 78 A.L.R.4th 973.

Workers' compensation: compensability of injury during tryout, employment test, or similar activity designed to determine employability, 8 A.L.R.5th 798.

99 C.J.S. Workmen's Compensation §§ 59 to 119.