A. Claims for workers' compensation shall be allowed only:

(1) when the worker has sustained an accidental injury arising out of and in the course of his employment;

(2) when the accident was reasonably incident to his employment; and

(3) when the disability is a natural and direct result of the accident.

B. In all cases where the employer or his insurance carrier deny that an alleged disability is a natural and direct result of the accident, the worker must establish that causal connection as a probability by expert testimony of a health care provider, as defined in Section 52-4-1 NMSA 1978, testifying within the area of his expertise.

History: 1953 Comp., § 59-10-13.3, enacted by Laws 1959, ch. 67, § 7; 1987, ch. 235, § 13.

I. GENERAL CONSIDERATIONS.

Seasonal employment. — Seasonal employment does not include activities which can be carried on essentially year round, even if the work may be occasionally interrupted by producers, market fluctuations, or other outside agents. Logging is not seasonal employment for purposes of the New Mexico Workers' Compensation Act. Murillo v. Payroll Express, 1995-NMCA-062, 120 N.M. 333, 901 P.2d 751.

Health care provider defined. — The phrase "health care provider" as used by the legislature is a shorthand expression referring to licensed occupations listed in Section 52-4-1 NMSA 1978 without reference to the requirement of licensure in New Mexico. The purpose of the 1987 amendment was to expand the admissibility of expert testimony regarding causation, not restrict it. The reference in this section to Section 52-4-1 NMSA 1978 can best be explained as the use of a handy list of health care professionals who treat workers and therefore would be competent to render an opinion on causation. Coslett v. Third St. Grocery, 1994-NMCA-046, 117 N.M. 727, 876 P.2d 656, cert. denied, 117 N.M. 802, 877 P.2d 1105.

For there to be workmen's (workers') compensation award, there must be disability and the compensation payable is measured in terms of disability. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974.

Fundamental theory favors recovery rather than denial. — When the reason or cause for the accident is not explained, and it occurred during the time decedent was at work, the fundamental theory underlying the workmen's (workers') compensation law favors recovery rather than denial of compensation. Ensley v. Grace, 1966-NMSC-181, 76 N.M. 691, 417 P.2d 885.

Burden is on plaintiff to establish existence of compensable claim and that, the evidence being in conflict, it was the necessary duty of the trial court to resolve the conflict. Tafoya v. Kermac Nuclear Fuels Corp., 1962-NMSC-161, 71 N.M. 157, 376 P.2d 576.

Burden of proof of employability. — The claimant has the duty of showing that he was disabled from doing any work for which he was fitted by age, education, training and previous experience; however, after plaintiff has introduced evidence as to his age, education, training and general physical and mental capacity, the burden of coming forward is on the defendant as it is much easier for the defendant to prove the employability of the plaintiff for a particular job than for plaintiff to try to prove the universal negative of not being employable at any work. Brown v. Safeway Stores, Inc., 1970-NMCA-132, 82 N.M. 424, 483 P.2d 305.

Order denying objection to change not appealable. — A judge's order denying a request, or an objection, to change health care provider is not final and appealable when a claim for benefits is pending before the workers compensation administration. Kellewood v. BHP Minerals Int'l, 1993-NMCA-148, 116 N.M. 678, 866 P.2d 406.

Elements to prove claim. — This section sets forth the elements necessary to prove a compensable claim. Murphy v. Strata Prod. Co., 2006-NMCA-008, 138 N.M. 809, 126 P.3d 1173.

Test for recovery under workmen's (workers') compensation statute relates to the workman's (worker's) ability "to obtain and retain gainful employment," considering his age, education, training, general mental and physical capacity and his adaptability. Snead v. Adams Constr. Co., 1963-NMSC-075, 72 N.M. 94, 380 P.2d 836.

Primary test for disability is capacity to perform work. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466; Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

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 (Ct. App. 1986).

Determination of degree of disability is question of fact for the fact finder and if there is substantial evidence in the record to support a finding, the appellate court is bound thereby. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466.

Measure of disability under workmen's (workers') compensation statute is the relationship between the workman's (worker's) ability to do work prior to the injury, and such ability following the injury. Gurule v. Albuquerque-Bernalillo Cnty. Economic Opportunity Bd., 1972-NMCA-094, 84 N.M. 196, 500 P.2d 1319, cert. denied, 84 N.M. 180, 500 P.2d 1303.

Award is based upon permanent injuries, not the outward manifestation, or lack thereof, of the symptoms resulting from the injuries. Having found total disability, it was not necessary for the trial court to make a negative finding with respect to the symptoms alone. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

"Permanent damage to the heart" is not a "disability" unless it adversely affects a workman's (worker's) capacity to work. If it does, then a workman (worker) suffers a permanent disability, whether the damage is large or small. Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Latent injuries are recognized under this section. Chaffins v. Jelco, Inc., 1971-NMCA-071, 82 N.M. 666, 486 P.2d 75, cert. quashed, 83 N.M. 22, 487 P.2d 1092.

Worker's knowledge of impairment for purposes of statute of limitations. — The fact that a worker is restricted to proving his claim by the testimony of a health care provider agreed upon by the parties or approved by the workers' compensation judge, and that the provider is directed to use American medical association publications in establishing the degree of disability, does not limit the running of the statute of limitations to only those situations when a health care provider has actually informed the worker that he has sustained a permanent impairment; thus, resolution of when a worker was deemed to have sustained impairment for purposes of running of the limitations period constituted a factual issue unsuitable for resolution by summary judgment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861.

Payment of full wages not conclusive as to disability. — Payment of full wages, whether earned or not, is not conclusive on the question of "disability." Rayburn v. Boys Super Mkt., Inc., 1964-NMSC-201, 74 N.M. 712, 397 P.2d 953.

If a veterans administration payment is a pension, it cannot be considered to reduce the amount of workmen's (workers') compensation. Snead v. Adams Constr. Co., 1963-NMSC-075, 72 N.M. 94, 380 P.2d 836.

Lack of support not conclusive as to dependency. — In determining dependency of widow and children of deceased claimant, fact that claimant had not supported them in the years just previous to his death is not conclusive on question of dependency when there is some payment to dependents from his attached funds and deceased intended to begin supporting his dependents in full in near future. Houston v. Lovington Storage Co., 1965-NMSC-030, 75 N.M. 60, 400 P.2d 476.

It is not necessary that essential facts to a recovery be proved by direct evidence; they may be established by reasonable inferences drawn from proven facts. Where there is substantial evidence that the death of an employee results from an accident and the accident occurs during his hours of work, at a place where his duties require him to be, or where he might properly have been in the performance of such duties, the trier of the facts may reasonably conclude therefrom, as a natural inference, that the accident arises out of and in the course of the employment, and that the injury was reasonably incident to the employment. Houston v. Lovington Storage Co., 1965-NMSC-030, 75 N.M. 60, 400 P.2d 476.

When evidence on disability is primarily or substantially all documentary, the appellate court is as well positioned as the trial court to consider and weigh the evidence and determine the facts disclosed thereby; however, the trial court's finding is to be included in the weighing and review. Martinez v. Universal Constructors, Inc., 1971-NMCA-160, 83 N.M. 283, 491 P.2d 171.

Where doctor's testimony was presented to trial court by depositions, the appellate court was still bound by trial court's findings as to that testimony, if supported by substantial evidence. Brannon v. Well Units, Inc., 1970-NMCA-130, 82 N.M. 253, 479 P.2d 533.

Trial court can properly consider deposition testimony of treating physician. Martinez v. Universal Constructors, Inc., 1971-NMCA-160, 83 N.M. 283, 491 P.2d 171.

Trial court to determine credibility and weight of witnesses. — There is a conflict in the evidence concerning plaintiff's present disability. The credibility of the witnesses and the weight to be given their testimony are to be determined by the trial court and not by the appellate court. Mares v. City of Clovis, 1968-NMCA-102, 79 N.M. 759, 449 P.2d 667.

Although plaintiff testified that he suffered an accidental injury while at work on a certain date, there is evidence which contradicts plaintiff. It was for the trial court to resolve the conflict. Montoya v. Leavell-Brennand Constr. Co., 1970-NMCA-077, 81 N.M. 616, 471 P.2d 186.

It was for the trial court, as the trier of the facts, and not for this court, to determine the credibility of the witnesses, the weight to be given their respective testimonies, and wherein the truth lay, and that the witnesses upon whose credibility the trial court was required to pass were medical experts, and that the differences and conflicts to be resolved arose out of their medical opinions as to the causes and nature of plaintiff's disabling condition, does not alter the rule. Wood v. Citizens Std. Life Ins. Co., 1971-NMSC-011, 82 N.M. 271, 480 P.2d 161.

It was not the duty of the appellate court to weigh the testimony of the doctors, but rather, the duty of the trier of fact; and although there was testimony of the medical experts from which the trial court might have found other than it did, nevertheless, it was for the trial court, as the fact finder, to evaluate all the evidence and determine where the truth lay. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Trier of facts to determine weight and conflicts of medical witnesses. — Once a medical witness has qualified to give an expert medical opinion upon a particular issue, the weight, if any, to be given his opinion on this issue, and the resolution of conflicts between his opinion and the opinions of other medical experts on the issue, are for the trier of the facts. Wood v. Citizens Std. Life Ins. Co., 1971-NMSC-011, 82 N.M. 271, 480 P.2d 161.

Where two medical experts express contrary opinions on causation, a conflict arises and such conflict must be resolved by the trier of facts. Chaffins v. Jelco, Inc., 1971-NMCA-071, 82 N.M. 666, 486 P.2d 75, cert. quashed, 83 N.M. 22, 487 P.2d 1092.

Where testimony of medical experts was conflicting on cause of injury the supreme court of New Mexico held it was within the province of the trier of fact to evaluate and choose between the conflicting views of the experts on this question. Irvin v. Rainbo Baking Co., 1966-NMSC-075, 76 N.M. 213, 413 P.2d 693.

The testimony of a physician is opinion testimony and as such is not conclusive, and the trier of the facts may accept, reject or give such weight only as it deems such evidence is entitled to have, even though uncontradicted. Where medical testimony is conflicting the court's determination will be affirmed. Renfro v. San Juan Hosp., 1965-NMSC-067, 75 N.M. 235, 403 P.2d 681; Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212.

The mere production of one or more experts who testify to the causal connection does not satisfy the burden imposed upon the workman (worker) by the section if there is other expert testimony expressing a contrary opinion, as when such conflict in the proof arises, the trier of the facts must resolve the disagreement and determine the true facts. Gallegos v. Kennedy, 1968-NMSC-170, 79 N.M. 590, 446 P.2d 642.

Compensation not payable until and unless a work-related accident produces an injury which becomes disabling. 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 .

Determination of amount of compensation. — If the court finds that a workman's (workman's) injury resulted in a prejudgment terminated disability, he is paid "the amount then due." If a workman's (worker's) injury resulted in a post-judgment disability, he is also paid compensation "at regular intervals during the continuance of his disability." Sena v. Gardner Bridge Co., 1979-NMCA-042, 93 N.M. 358, 600 P.2d 304, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Voluntary payment of benefits as evidence. — Admission by an employer that it voluntarily paid an employee workmen's (workers') compensation benefits is competent evidence of every relevant fact necessary under this section to allow the employee recovery of benefits after the voluntary payments cease. Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

Failure to find positive evidence not fatal to claim. — If there are any facts and circumstances sufficient to raise a reasonable inference that the employee met an accident on the job, the failure to find positive evidence is not fatal to the claim. 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.

Expert testimony not limited to specialists. — Subsection B does not limit expert testimony on causation to a specialist in the area of injury. Turner v. N.M. State Hwy. Dep't, 1982-NMCA-097, 98 N.M. 256, 648 P.2d 8, cert. denied, 98 N.M. 336, 648 P.2d 794 (decided under prior law).

Expert medical testimony. — A psychologist cannot render "expert medical testimony" under Subsection B of this statute. Fierro v. Stanley's Hardware, 1985-NMCA-085, 104 N.M. 401, 722 P.2d 652, rev'd on other grounds, 1986-NMSC-022, 104 N.M. 50, 716 P.2d 241.

Use of the phrase "expert medical testimony" in Subsection B does not limit the qualification of expert testimony to licensed physicians. Madrid v. University of Cal., 1987-NMSC-022, 105 N.M. 715, 737 P.2d 74.

Licensed psychologist was qualified to provide expert medical testimony of causation of plaintiff's claimed mental condition. Madrid v. University of Cal., 1987-NMSC-022, 105 N.M. 715, 737 P.2d 74.

A chiropractor may offer expert medical testimony regarding causation. Vallejos v. KNC, Inc., 1987-NMSC-030, 105 N.M. 613, 735 P.2d 530.

Standard for admitting expert testimony established by Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in New Mexico by State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the testimony of a health care provider pursuant to Subsection B of this section or Section 52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.

The "expert" testimony required by Subsection B of this section refers to testimony based on the treating health care provider's training, experience and familiarity. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.

Section 11.4.4.12(O) NMAC (now 11.4.4.12 P), when read together with Subsection B of this section, necessarily implies a different evidentiary principle than that of Daubert/Alberico. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.

A doctor's opinion testimony was substantial evidence for finding of 80% partial permanent disability. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

Conflict between treating physician and specialist. — If treating physician's testimony was sufficient to support a finding of no disability, it was the trial court's function to resolve the conflict between treating physician's testimony and that of specialist. Martinez v. Universal Constructors, Inc., 1971-NMCA-160, 83 N.M. 283, 491 P.2d 171.

Where expert witness had no knowledge of pertinent information. — Where pertinent information existed about which expert witness apparently had no knowledge, his opinion cannot serve as the basis for compliance with this section. Niederstadt v. Ancho Rico Consol. Mines, 1975-NMCA-059, 88 N.M. 48, 536 P.2d 1104, cert. denied, 88 N.M. 29, 536 P.2d 1085.

Medical expert may properly express his opinion in percentages as to the impairment of the physical functions of a claimant. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657.

Expert medical testimony not required for intoxication defense by employer. — This section (proof of compensable claims) does not require an employer seeking to establish that a worker's accident was caused by his or her intoxication pursuant to 52-1-11 NMSA 1978 to prove such a causal connection through expert testimony. Estate of Mitchum v. Triple S Trucking, 1991-NMCA-118, 113 N.M. 85, 823 P.2d 327, cert. denied, 113 N.M. 16, 820 P.2d 1330.

Totally disabled notwithstanding the medical opinion. — The claimant is wholly unable to perform the usual tasks of a common laborer which was what he was doing when he was injured, and he is entirely unable to perform any work for which he is qualified. This is true, notwithstanding the doctor's statement that claimant is "20 percent permanently disabled, no matter what he does." Although this testimony may be accurate "medically," under the section if he can no longer do the work he was doing when injured, and cannot do the only work for which he is qualified, he is "legally" totally disabled. Quintana v. Trotz Constr. Co., 1968-NMSC-037, 79 N.M. 109, 440 P.2d 301, overruled on other grounds by American Tank & Steel Corp. v. Thompson, 1977-NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Work-related stress. — The burden was on worker to provide medical evidence showing that his heart attack and death was a medically probable result of work-related stress. Grine v. Peabody Nat. Res., 2005-NMCA-075, 137 N.M. 649, 114 P.3d 329, rev'd on other grounds, 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190.

Unable to perform work due to anxiety reaction. — That the outward manifestations of the anxiety reaction could be controlled by medication does not alter the fact that plaintiff still was unable to perform any type of work such as he had formerly been able to do, or which, by reason of his age, mental condition, training and experience, he would have been able to do. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

If compensation or traumatic neurosis is present as a result of a work-connected injury, and claimant's earning powers are thereby adversely affected, there is no reason why the same is not compensable. Ross v. Sayers Well Servicing Co., 1966-NMSC-099, 76 N.M. 321, 414 P.2d 679.

Finding of disability as ultimate fact. — A finding that a workman (worker), to a stated percentage extent, is partially and permanently disabled is a finding of an ultimate fact. McClesky v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974.

The failure of the court to adopt an express finding on the issue of causation and plaintiff's mental condition does not require denial of an award of medical benefits for treatment of depression where other findings adopted by the court are sufficient to support the court's ultimate findings on this issue. Montney v. State ex rel. State Hwy. Dep't, 1989-NMCA-002, 108 N.M. 326, 772 P.2d 360, cert. denied, 108 N.M. 197, 769 P.2d 731.

Trial court's finding affirmed if substantial evidence. — Trial court's finding that plaintiff did not sustain an accidental injury arising out of and in the course of his employment must be affirmed if there is substantial evidence to support the finding on this point and supreme court will not weigh the evidence. Jacquez v. McKinney, 1968-NMSC-006, 78 N.M. 641, 436 P.2d 501.

Finding of disability contrary to evidence. — Where the evidence shows the claimant was substantially and continuously employed in comparable work, except for short intervals, the verdict of the trial jury finding claimant totally and permanently disabled for 115 weeks is contrary to the undisputed evidence in the case, and should be vacated and set aside. Baca v. Swift & Co., 1964-NMSC-104, 74 N.M. 211, 392 P.2d 407.

Failure of trial court to find concerning plaintiff's ability to perform usual tasks of work performed when injured was not a failure to find an ultimate fact. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974.

Failure to find fact regarded as finding against party having burden. — Even if omissions were made, it is the rule in this jurisdiction that a failure by the trial court to find a material fact must be regarded as a finding against the party having the burden of establishing such fact. Baker v. Shufflebarger & Assocs., Inc., 1966-NMSC-189, 77 N.M. 50, 419 P.2d 250.

Scope of review on appeal. — If the necessary medical evidence is produced, the degree of disability is a question of fact for the fact-finder; and if there is substantial evidence in the record to support a disability finding, it is binding on a reviewing court. Smith v. Trailways Bus Sys., 1981-NMCA-041, 96 N.M. 79, 628 P.2d 324, cert. denied, 96 N.M. 116, 628 P.2d 686.

The appellate court, on appeal, in reviewing workmen's (workers') compensation cases considers only evidence and inferences that may be reasonably drawn therefrom in the light most favorable to support the findings of the trial court and does not weigh conflicting evidence or the credibility of the witnesses. Turner v. N.M. State Hwy. Dep't, 1982-NMCA-097, 98 N.M. 256, 648 P.2d 8, cert. denied, 98 N.M. 336, 648 P.2d 794.

Where conflicting medical testimony is presented as to whether a medical probability of causal connection existed between myocardial infarction and the work being performed, the trial court's determination will be affirmed. Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

The question on appeal is not whether there is evidence to support an alternative result but, rather, whether the trial court's result is supported by substantial evidence. Bagwell v. Shady Grove Truck Stop, 1986-NMCA-013, 104 N.M. 14, 715 P.2d 462.

II. ACCIDENT IN COURSE OF EMPLOYMENT.

A. IN GENERAL.

Claimant seeking recovery under workmen's (workers') compensation was required to prove a compensable claim by showing an accidental injury arising out of and in the course of employment that was reasonably incident to his employment, and was required to establish causal connection as a medical probability by expert medical testimony. Geeslin v. Goodno, Inc., 1967-NMSC-025, 77 N.M. 408, 423 P.2d 603.

The burden rests on a plaintiff in a case of this kind to show that a decedent's death was proximately caused by an accident arising out of and in the course of his employment. Campbell v. Schwers-Campbell, Inc., 1955-NMSC-056, 59 N.M. 385, 285 P.2d 497 (decided under former law).

To recover workmen's (workers') compensation, the claimant must have sustained an accidental injury arising out of and in the course of his employment. Montoya v. Leavell-Brennand Constr. Co., 1970-NMCA-077, 81 N.M. 616, 471 P.2d 186.

Under Workmen's (Workers') Compensation Act, recovery is allowed only "when the workman (worker) has sustained an accidental injury arising out of, and in the course of his employment." In the absence of such showing, there can be no recovery. Jacquez v. McKinney, 1968-NMSC-006, 78 N.M. 641, 436 P.2d 501.

Claims under the Workmen's (Workers') Compensation Act are allowed only when they involve job-related injuries. Holliday v. Talk of Town, Inc., 1982-NMCA-103, 98 N.M. 354, 648 P.2d 812, cert. denied, 98 N.M. 336, 648 P.2d 794.

Controlling factor whether general servant of employer or special servant of another. — In the case of Weese v. Stoddard, 1956-NMSC-117, 63 N.M. 20, 312 P.2d 545 (1957), 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.

Question of law where facts undisputed. — Where the historical facts of the case are undisputed, the question whether the accident arose out of and in the course of the employment is a question of law. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65; 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; Lujan v. Payroll Express, Inc., 1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, cert. denied, 114 N.M. 62, 834 P.2d 939.

Special employee of another while working off-duty from employer. — 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.

General rule is that employment begins when employee reaches place of work and ends after he leaves his place of work. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Liability of earlier employer for injury's aggravation releases subsequent employer liability. — A disabled employee is not required to seek relief from subsequent employer for aggravation of an injury, where evidence showed that such aggravation resulted from a prior injury for which an earlier employer was liable, and from which the employee had never recovered. Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212.

Judgment entered against defendant in face of plaintiff's unchallenged findings. — Where unchallenged findings of fact established that at the time of trial plaintiff was totally disabled and unable to obtain and retain gainful employment, and that this disability began and had continued without interruption since plaintiff's injury in the course of his employment by defendant, judgment must be entered against defendant for total disability. Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212.

Employer's voluntary payment of employee's benefits admission of accident. — By voluntarily paying an injured employee workmen's (workers') compensation benefits, the employer admits that the employee's disability was a natural and direct result of an accident arising out of and in the course of his employment, and relieves plaintiff of the burden of establishing any causal connection as a medical probability by expert medical testimony. Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212, but see 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; Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

Voluntary payment of compensation benefits is merely competent evidence as to any issue in a workmen's (workers') compensation suit and does not create any presumptions or shifts in the original burden. 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, see Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

Where the sufficiency of the evidence to support the findings that claimant was injured at a time when he was not acting within the scope of his employment, and the injury occurred after he had left his employment, is not directly attacked, they are, therefore, binding upon this court. McAfoos v. Borden Implement Co., 1965-NMSC-028, 75 N.M. 50, 400 P.2d 470.

Self-directed physical fitness. — A worker did not sustain an injury arising in the course of his employment when he suffered a heart attack while engaged in a self-directed fitness program, although physical fitness was a prerequisite to attending the law enforcement academy. Meeks v. Eddy Cnty. Sheriff's Dep't, 1994-NMCA-134, 118 N.M. 643, 884 P.2d 534, cert. denied, 118 N.M. 731, 885 P.2d 1325.

B. ACCIDENTAL INJURY.

"Accidental injury" or "accident" is an unlooked for mishap, or untoward event which is not expected or designed. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970); Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434; Hernandez v. Home Educ. Livelihood Program, Inc., 1982-NMCA-079, 98 N.M. 125, 645 P.2d 1381, cert. denied, 98 N.M. 336, 648 P.2d 794 (specially concurring opinion); Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Unnecessary that workman (worker) be subjected to unusual or extraordinary condition or hazard not usual to his employment for an injury to be an accidental injury under the compensation act. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970).

If strain of claimant's usual exertions causes collapse from back weakness, injury is accidental. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970).

Malfunction of body as accidental injury. — A malfunction of the body itself, such as a fracture of the disc or tearing a ligament or blood vessel, caused or accelerated by doing work required or expected in employment is an accidental injury within the meaning and intent of the compensation act. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970); Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434, Tom Growney Equip. Co. v. Jonett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

An internal malfunction of the body caused by on-the-job activity is a compensable injury under the Workmen's (Workers') Compensation Act. Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160.

Stress-induced heart attack. — There was abundant competent evidence to support the trial court's finding that job-related stress, i.e., stress as it related to a firefighter's job, induced the firefighter's heart attack, and that the heart attack caused his death, even though the deceased died in his sleep, because he was nonetheless on duty at the station house at the time. Oliver v. City of Albuquerque, 1987-NMSC-096, 106 N.M. 350, 742 P.2d 1055.

Physicians' testimony supported a finding that claimant's death was causally connected to employment-related stress, where claimant, a hospital nurse, had died as a result of a heart attack suffered at work. Herman v. Miners' Hosp., 1991-NMSC-021, 111 N.M. 550, 807 P.2d 734.

The physician's testimony was sufficient to establish that the decedent's death was caused by a myocardial infarction related to his work. Mieras v. Dyncorp, 1996-NMCA-095, 122 N.M. 401, 925 P.2d 518, cert. denied, 122 N.M. 279, 923 P.2d 1164.

Opinion of worker's treating physician, who treated over 10,000 heart patients in his 30-year career; who treated worker for several months; who was aware of worker's pre-existing conditions, his work schedule, mandatory overtime and confrontation with supervisor; and who believed that worker, who did not report any stress from his family situation, had a happy marriage, a supportive wife and a good family and whose testimony was uncontradicted, that worker's work-related stress contributed to his heart attack was substantial evidence of a causal connection between the worker's heart attack and his work-related stress. Grine v. Peabody Natural Res., 2006-NMSC-031, 140 N.M. 30, 139 P.3d 90.

Stress of labor aggravating preexisting infirmity as accident. — If the stress of labor aggravates or accelerates the development of a preexisting infirmity causing an internal breakdown of that part of the structure, a personal injury by accident does occur. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434; Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160.

Mental breakdown resulting from termination not compensable. — Employee who suffered a mental breakdown from being terminated from defendant's employ may not recover workmen's (workers') compensation benefits because claimant did not suffer an accidental injury arising out of his employment since the risk that the employment might be terminated was not a risk incident to the performance of claimant's work, and was not peculiar to claimant's employment. Kern v. Ideal Basic Indus., 1984-NMCA-099, 101 N.M. 801, 689 P.2d 1272, cert. denied, 102 N.M. 7, 690 P.2d 450.

Psychological disability caused by stress arising out of and in the course of employment is compensable. This presupposes the existence of an actual job condition which causes the stress (actual stress), rather than a perceived condition that does not exist (imagined stress). Candelaria v. General Elec. Co., 1986-NMCA-016, 105 N.M. 167, 730 P.2d 470, cert. quashed, 105 N.M. 111, 729 P.2d 1365; Lopez v. Smith's Mgmt. Corp., 1986-NMCA-054, 106 N.M. 416, 744 P.2d 544, cert. quashed, 106 N.M. 405, 744 P.2d 180 (1987).

Rupture. — Claimant's view that he had suffered an injury while lubricating a machine was upheld where there was testimony that he did not complain of feeling any pain earlier in the day and a physician testified that claimant's rupture was caused by leaning over and reaching with his lubricating tool in hand. Beyale v. Arizona Pub. Serv. Co., 1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366, cert. denied, 105 N.M. 111, 729 P.2d 1365.

A gradual, noise-induced hearing loss is an accidental injury compensable under this section and is not an occupational disease. Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761, cert. denied, 107 N.M. 785, 765 P.2d 758.

Disability, resulting from gun accidentally discharged while cleaning, compensable. — Claimant's disability resulting from a self-inflicted gunshot wound was compensable, where his employer failed to rebut the presumption against suicide and there was sufficient evidence to support a finding that the gun accidentally discharged while claimant was cleaning it, for sometimes use on the job. Neel v. State Distribs., Inc., 1987-NMCA-103, 105 N.M. 359, 732 P.2d 1382, cert. denied, 105 N.M. 358, 732 P.2d 1381.

Shooting of deputy sheriff as accidental injury. — Uncontradicted evidence that plaintiff's decedent, a deputy sheriff, was found dead of shotgun wounds seated in the driver's seat of his patrol car, and that the shotgun which did not have a trigger guard was sitting over the hump of the transmission on the floor, established an accidental injury arising out of deputy's employment. Thigpen v. County of Valencia, 1976-NMCA-049, 89 N.M. 299, 551 P.2d 989, cert. denied, 90 N.M. 7, 558 P.2d 619.

C. COURSE OF EMPLOYMENT.

Factors must coexist. — "Course of employment," as used in Subsection A, refers to the time, place and circumstances under which the injury occurred: "arise out of," as used in Subsection A, relates to the cause of the injury. Both of these factors must coexist; one without the other is not enough. Gutierrez v. Artesia Pub. Schs., 1978-NMCA-081, 92 N.M. 112, 583 P.2d 476.

"Course of employment" refers to the time, place and circumstances under which the injury occurred, and is synonymous with the term "while at work." Thigpen v. County of Valencia, 1976-NMCA-049, 89 N.M. 299, 551 P.2d 989, cert. denied, 90 N.M. 7, 558 P.2d 619.

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; Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

The words "in the course of (his) employment" relate to the time, place and circumstances under which the accident takes place. An accident arises in the course of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438.

Injury is said to arise in the course of employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he is fulfilling his duties or engaged in doing something incidental thereto. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Course of employment as finding of fact. — Where trial court simply stated that on the date of a claimed accident, the plaintiff did not incur an accident or suffer an injury arising out of and in the course of his employment, such finding was not a conclusion of law but a proper ultimate finding of fact, and claim that trial court failed to make findings of fact was without merit. Bell v. Kenneth P. Thompson Co., 1966-NMSC-117, 76 N.M. 420, 415 P.2d 546.

In workman's (worker's) compensation, ultimate facts to be determined by trial court as a basis for the conclusion as to whether the claim is a compensable one are whether an injury sustained by a workman (worker) arose out of and in the course of his employment. Brundage v. K.L. House Constr. Co., 1964-NMSC-243, 74 N.M. 613, 396 P.2d 731.

Conclusion of law freely reviewable. — 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.

Error where record does not rebut presumption of employment. — Where claimant lost her life while engaged in her employment as a result of being shot by her co-employee for unexplained reasons, and, as the evidence of record in no way serves to rebut the presumption that death arose out of her employment, the trial court erred in finding that death did not arise out of the employment. Ensley v. Grace, 1966-NMSC-181, 76 N.M. 691, 417 P.2d 885.

Where employer consented to practice as within employment. — Uncontradicted proof is established that plaintiff's deceased did not depart from his employment in watering his horses while on call during his shift because his employer knew and consented to this practice; he was performing the duties of his employment. Thigpen v. County of Valencia, 1976-NMCA-049, 89 N.M. 299, 551 P.2d 989, cert. denied, 90 N.M. 7, 558 P.2d 619.

Automotive mechanic's injury, sustained while working on his own vehicle after hours in his employer's garage was in the course of his employment, where there was sufficient evidence to find that his employer benefitted from his presence on the premises. Evans v. Valley Diesel, 1991-NMSC-027, 111 N.M. 556, 807 P.2d 740.

Injury to employee living at job site. — The bunkhouse rule states that if an employee is required to live on the employer's premises, an injury suffered by the employee while reasonably using the premises is considered as occurring in the course of employment, even if the injury occurs during an employee's leisure time. Lujan v. Payroll Express, Inc., 1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, cert. denied, 114 N.M. 62, 834 P.2d 939.

Claimant was not performing service for employer where she intended to give her supervisor a ride home. McDonald v. Artesia Gen. Hosp., 1963-NMSC-199, 73 N.M. 188, 386 P.2d 708, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

Not acting in course of employment. — Where decedent was not fulfilling the duties of his employment or engaged in doing something incidental thereto, he was not acting in the course of his employment. Gutierrez v. Artesia Pub. Schs., 1978-NMCA-081, 92 N.M. 112, 583 P.2d 476.

Trip to or from doctor's office. — Normally, a trip to or from a doctor's office is only compensable under the Workmen's (Workers') Compensation Act if the injury to be treated was work-related and compensable under the act. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Salesman on plane trip awarded for sales achievement was not in course of employment where he was engaged in a noncompulsory social activity and was not fulfilling any duties of his employment and was not engaged in something incidental to his duties during the flight. Beckham v. Estate of Brown, 1983-NMCA-051, 100 N.M. 1, 664 P.2d 1014, cert. denied, 100 N.M. 192, 668 P.2d 308.

D. ARISING OUT OF EMPLOYMENT.

For injury to "arise out of" the employment, there must be a showing that the injury was caused by a risk to which the plaintiff was subjected by his employment. The employment must contribute something to the hazard of the fall. Compensation has been denied where the risk was common to the public. Williams v. City of Gallup, 1966-NMSC-213, 77 N.M. 286, 421 P.2d 804; Gutierrez v. Artesia Pub. Schs., 1978-NMCA-081, 92 N.M. 112, 583 P.2d 476; 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.

A worker's injuries arise out of his employment if the injury is caused by a risk the worker is subjected to in his employment. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Injuries stemming from sexual harassment. — Plaintiff's claim that the injuries she suffered due to sexual harassment in the workplace was an injury "arising out of" employment failed because sexual harassment was not a regular incident of the employment and the employer had specific policies in place prohibiting sexual harassment. Cox v. Chino Mines/Phelps Dodge, 1993-NMCA-036, 115 N.M. 335, 850 P.2d 1038.

Where risk incidental to employment. — A risk is incidental to the employment, for the purposes of Subsection A(2), only where the risk belongs to or is connected with what an employee must do in fulfilling her contract. Velkovitz v. Penasco Indep. Sch. Dist., 1980-NMCA-066, 96 N.M. 587, 633 P.2d 695, rev'd on other grounds, 1981-NMSC-075, 96 N.M. 577, 633 P.2d 685.

To "arise out of" employment, there must have been causal connection between the employment and the injury so that the injury is reasonably incident to the employment. Brundage v. K.L. House Constr. Co., 1964-NMSC-243, 74 N.M. 613, 396 P.2d 731.

If an injury can be seen to have followed as a natural incident of work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. Gutierrez v. Artesia Pub. Sch., 1978-NMCA-081, 92 N.M. 112, 583 P.2d 476.

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. Continental Cas. Co., 1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794.

Injury must have origin in risk connected with employment. — The "arising out of" requirement excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause; the causative danger must be peculiar to the work, it must not be independent of the relation of master and servant. After the event it must appear that the accidental injury had its origin in a risk connected with the employment and to have flowed from that risk as a rational consequence. McDaniel v. City of Albuquerque, 1982-NMCA-164, 99 N.M. 54, 653 P.2d 885.

Establishing causation. — The fact that the decedent died while at work is insufficient, without other evidence, to establish that the injury arose out of the employment; similarly, where the evidence bearing upon the issue of causation is conflicting, the fact that there was evidence which, if effected by the factfinder, would have permitted it to reach a different result, does not constitute a basis for reversal. Wilson v. Yellow Freight Sys., 1992-NMCA-093, 114 N.M. 407, 839 P.2d 151.

Reasonable inferences drawn from proven facts. — Where decedent met her death by reason of an unexplained assault on her by her co-employee while she was at work at her usual place of employment, it is not necessary that the essential facts necessary to a recovery be proved by direct evidence; they may be established by reasonable inferences drawn from proven facts. Ensley v. Grace, 1966-NMSC-181, 76 N.M. 691, 417 P.2d 885.

Where there is substantial evidence that the death of an employee results from an accident and the accident occurs during his hours of work, at a place where his duties require him to be, or where he might properly have been in the performance of such duties, the trier of the facts may reasonably conclude therefrom, as a natural inference, that the accident arises out of and in the course of the employment, and that the injury was reasonably incident to the employment. Ensley v. Grace, 1966-NMSC-181, 76 N.M. 691, 417 P.2d 885.

Natural inference of course of employment. — Where there is substantial evidence that the death of an employee resulted from accident and that the 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 jury or other trier 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); Campbell v. Schwers-Campbell, Inc., 1955-NMSC-056, 59 N.M. 385, 285 P.2d 497 (decided under former law).

Presumption that death arose out of employment. — Where trial judge found that employer failed to rebut the presumption that employee's death by shooting arose out of his employment, judge, as fact finder, was entitled to presume that employee's death arose out of his employment but was not required to make this presumption, and upon weighing the evidence, could properly resolve the issue against employer. Mortgage Inv. Co. v. Griego, 1989-NMSC-014, 108 N.M. 240, 771 P.2d 173.

Scope of employment is to be determined from directions of employer, and not from any agreement between the employee and her fellow employees; thus, the fact that an employee agreed with her fellow employees to form a car pool at a shopping center before proceeding to a required conference was of no consequence to the scope of her employment. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Denial of compensation where injury due to personal animosity. — Where the trial court's finding was that the injury in this case was the result of personal animosity, rather than arising out of the employee's work and there was substantial evidence to support this finding, appellate court affirmed denial of workmen's (workers') compensation. Valdez v. Glover Packing Co., 1972-NMCA-032, 83 N.M. 570, 494 P.2d 983.

Horseplay. — A participant in horseplay may recover workers' compensation benefits if he or she can establish that the activity in which the injury occurred had become a regular incident of the employment, rather than an isolated act. Woods v. Asplundh Tree Expert Co., 1992-NMCA-046, 114 N.M. 162, 836 P.2d 81, cert. denied, 113 N.M. 744, 832 P.2d 1223.

In using the course of employment test to determine whether an employee injured during horseplay should recover, the fact-finder should consider: (1) the extent and seriousness of the deviation, (2) the completeness of the deviation, (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay. Woods v. Asplundh Tree Expert Co., 1992-NMCA-046, 114 N.M. 162, 836 P.2d 81, cert. denied, 113 N.M. 744, 832 P.2d 1223.

Injuries sustained while engaged in horseplay were compensable when the activity giving rise to the injuries constituted a regular incident of employment. — Where worker sustained injuries while engaged in horseplay on employer's premises, the workers' compensation judge did not err in concluding worker's injuries were compensable, because the injury took place during normal work hours and on employer's premises, worker and other co-workers had engaged in horseplay on previous occasions, employer had not counseled worker concerning horseplay any time prior to the incident, and employer had done nothing else to curtail repeated horseplay at the detention center. The evidence supports a determination that the activity giving rise to the injury constituted a regular incident of employment, as opposed to an isolated act, and any deviation from employment was narrow in scope and neither grave nor complete. Motes v. Curry Cty. Adult Det. Ctr., 2019-NMCA-022, cert. denied.

Recreational activity on employer's premises. — Where a recreational activity regularly occurs on the employer's premises, and the employer in essence, established, promoted, acquiesced in and condoned both the recreational facility and the activities and, in fact, provided the equipment, an accidental injury resulting therefrom satisfies both the "arising out of" and "in the course of employment" requirements. Kloer v. Municipality of Las Vegas, 1987-NMCA-140, 106 N.M. 594, 746 P.2d 1126.

Injury in employee's own vehicle at job site. — Employee who died of carbon monoxide poisoning while sleeping in a van he had purchased for purposes of camping at the employer's job site sustained an accidental injury arising out of and in the course of his employment within the meaning of this section. Lujan v. Payroll Express, Inc., 1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, cert. denied, 114 N.M. 62, 834 P.2d 939 (decided under former law).

Employee killed while performing other work not in employment. — Where decedent was employed by employer to clean a shed for client, but was killed while unloading heavy machinery, work for which he was neither qualified nor employed to perform, and work that employer did not know about and had not even contemplated, the fatal accident did not arise out of decedent's employment with employer. Green v. Manpower, Inc., 1970-NMCA-100, 81 N.M. 788, 474 P.2d 80.

Where city meter reader fell off motor scooter used in his employment, even though there was evidence that meter reader had been subject to fainting spells, fall off scooter was held to arise out of meter reader's employment. Williams v. City of Gallup, 1966-NMSC-213, 77 N.M. 286, 421 P.2d 804.

Employee shot on employer's premises connected with employment. — Where the mentally disturbed husband was aroused by an act of decedent while he was at work, and the husband then went to the employer's premises while decedent was there at work, and shot him, the risk was connected with the employment and the injury arose out of the employment. Hence, the exclusionary provision of the insurance policy precludes recovery where policy excludes "injury arising out of, or in the course of, any employment," and plaintiff is seeking to recover the remaining balance unpaid after recovery under the workmen's (workers') compensation law. Roskell v. Prudential Ins. Co. of Am., 529 F.2d 1 (10th Cir. 1976).

Injury while loading car not incident to employment. — Where workman (worker) during regular working hours was engaged in loading his soiled workclothes into his car so as to have them cleaned as was required by his employer, and in so doing moved or jostled a shotgun which was kept in the trunk of his car for personal use so as to inflict a fatal wound, such accident was not reasonably incident to his employment for purposes of this section. Ward v. Halliburton Co., 1966-NMSC-124, 76 N.M. 463, 415 P.2d 847.

Murder of employee by third person for reasons personal to third person and not connected with the employee's employment is a "risk" personal to the employee, and risks personal to a claimant and unrelated to his employment are universally held noncompensable. Gutierrez v. Artesia Pub. Schs., 1978-NMCA-081, 92 N.M. 112, 583 P.2d 476.

Claimant must prove labor caused or accelerated physical malfunction. — It was not necessary for claimant to prove that his disc ruptured while he was working, as long as he was able to prove that his labor caused or accelerated the physical malfunction. Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99 N.M. 148, 655 P.2d 160.

E. SPECIAL ERRAND RULE.

Special errand rule applicable where employee on special mission. — Where deceased employee who, along with three others, was ordered by the defendant-employer to attend a special two-day health and social services department meeting (all of whom had been requested by their respective supervisors to form a car pool and to return overnight to their home town between the two sessions in order to save fuel and reduce travel costs), picked up the three other employees at an agreed on meeting place, a parking lot, and proceeded in her car to the meeting, and at the close of the first day's session, after discharging her three colleagues in the same parking lot, drove out of the parking lot and immediately thereafter was involved in the accident which resulted in her death, the supreme court held that the special errand rule was applicable in that deceased was on a special mission for her employer and was within the scope of her employment from the moment she left home until the moment she would have returned home at the end of the day, and therefore, her fatal injuries arose out of and in the course of her employment, and the "going and coming" rule was inapplicable. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

The special errand rule states that when an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Workman (Worker) who sustained fatal injuries while returning to his home town for a dual purpose - (1) to enter a hospital, and (2) to accomplish some necessary item of employment as shown by the trial court's findings of fact, was entitled to benefits under this section. Clark v. Electronic City, 1977-NMCA-048, 90 N.M. 477, 565 P.2d 348, cert. denied, 90 N.M. 636, 567 P.2d 485.

"Special errand" or "special mission" for employer constitutes exception. — An exception to the general rule that employment begins when the employee reaches his place of work and ends when he leaves his place of work exists where the employee is on a "special errand" or "special mission" for the employer. An employer may agree that the employee's duties begin and end someplace other than the employee's place of work. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Application of special errand exception. — The special errand exception has been applied where: (1) there is an express or implied request that the service be performed after fixed working hours; (2) the trip involved was an integral part of the services performed for the employer; and (3) the task performed was special in the sense that it was not a regular and recurring task performed during normal working hours. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

F. GOING AND COMING RULE.

Deviation from route. — Taking a somewhat roundabout route, or being off the shortest line between the origin and destination, does not in itself remove the traveller from the course of employment; it must be shown in addition that the deviation was aimed at reaching some specific personal objective. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438.

Application of "going and coming" rule. — Under the "going and coming rule" worker was not entitled to compensation for injuries suffered during a nonroutine or unusual trip from the job site at a time when he was not being paid for travel time, and when he was not performing a job duty for the employer. Arias v. AAA Landscaping, 1993-NMCA-018, 115 N.M. 239, 849 P.2d 382.

The traveling-employee exception to the going and coming rule. — Under the traveling-employee exception to the going and coming rule, an employee whose work entails travel away from the employer's premises is, in most circumstances, under continuous workers' compensation coverage from the time he leaves home until he returns. The exception applies during the entire time the employee is traveling, and therefore necessarily encompasses injuries incurred while the employee is not actually working, such as when the employee is engaged in leisure or recreational activities. One seeking compensation for an injury must still demonstrate that the injury arose out of and in the course of employment. The requirement is met if the traveling employee was injured while engaging in an activity that was both reasonable and foreseeable, and if that activity is not conducted in an unreasonable or unforeseeable manner. Finally, the activity must confer some benefit on the employer. Armenta v. A.S. Horner, Inc., 2015-NMCA-092, cert. granted, 2015-NMCERT-008.

Where worker, on a work-related trip in Springer, New Mexico, had been allowed to drive employer's vehicle after work hours to pick up food and alcohol for an employees' dinner, but after dinner was told by his supervisor to drink moderately and to not leave the motel, worker, despite the warning, left the motel in employer's vehicle and headed to Raton to continue partying. Worker was killed in an accident just north of Springer. Worker's blood alcohol concentration was .23 at the time of his death. The accident did not arise out of and in the course of worker's employment because worker's decision to take the vehicle for a ride could be considered foreseeable and reasonable conduct under the traveling-employee exception, but doing so under the significant influence of alcohol was not reasonable, and no benefit could have been conferred on employer by worker's drinking excessively and driving to Raton, where employer had no business interests. Armenta v. A.S. Horner, Inc., 2015-NMCA-092, cert. granted, 2015-NMCERT-008.

Burden on plaintiff to show exception to "going and coming" rule. — The burden of showing that a plaintiff falls within an exception to the "going and coming" rule rests upon the plaintiff. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

III. DISABILITY AS RESULT OF ACCIDENT.

A. IN GENERAL.

Liability for mental injury. — Whenever physical injury from a work-related accident is accompanied by mental injury arising out of the same accident, the worker's sole remedy is workers' compensation, whether or not the particular injury may be compensated by a monetary award under the act. Maestas v. El Paso Natural Gas Co., 1990-NMCA-092, 110 N.M. 609, 798 P.2d 210, cert. denied, 110 N.M. 653, 798 P.2d 1039.

Disability resulting from mental delusion. — Subsection A evinces a legislative intent to restrict coverage to disability caused by real events, real occurrences at work. Not only must the accidental injury arise out of and be in the course of the worker's employment, but the accident must also be "reasonably incident" to the work and the disability must be a "natural and direct result" of the accident. There is no room in the statutory language for a disability that may have been caused by something that is only imagined. Green v. City of Albuquerque, 1991-NMCA-104, 112 N.M. 784, 819 P.2d 1342, cert. denied, 112 N.M. 737, 819 P.2d 687.

Worker's claim for mental disablity due to perceived job harassment was not compensable, where his delusory perception of harassment was not caused by anything that happened at work and his mental condition was such that he would perceive harassment regardless of what actually happened. Green v. City of Albuquerque, 1991-NMCA-104, 112 N.M. 784, 819 P.2d 1342, cert. denied, 112 N.M. 737, 819 P.2d 687.

Disability must be "natural and direct" result of accident. — The requirement set forth in Subsection A(3) of this section that the disability be a "natural and direct result" of the accident supplements the proximate-cause requirement of Subsection C of Section 52-1-9 NMSA 1978 for worker's compensation claims. Under this test a worker is entitled to benefits for a disability arising immediately from a work-related accident and for a disability that develops later as a result of the normal activities of life, but not for subsequent injuries, such as a back injury during a worker's repair of his transmission, that can be characterized as stemming from an independent, intervening cause. Aragon v. State Cors. Dep't, 1991-NMCA-109, 113 N.M. 176, 824 P.2d 316, cert. denied, 113 N.M. 23, 821 P.2d 1060.

The term "natural and direct" as used in this section signifies "an understandable and reasonable proximity of cause and effect as distinguished from remote and doubtful consequences resulting from a given occurrence." Weston v. Carper Drilling Co., 1966-NMSC-235, 77 N.M. 220, 421 P.2d 435; Stuckey v. Furr Food Cafeteria, 1963-NMSC-064, 72 N.M. 15, 380 P.2d 172.

No recovery on failure to establish causal connection. — Where there has been a failure to establish the causal connection required by statute, there can be no recovery in workmen's (workers') compensation. Torres v. Kennecott Copper Corp., 1966-NMSC-160, 76 N.M. 623, 417 P.2d 435.

Not having established the causal connection required by Subsection B of this section, plaintiff cannot recover. Romero v. Zia Co., 1966-NMSC-178, 76 N.M. 686, 417 P.2d 881.

Nonmedical evidence no avail where causal connection not established. — Absent the establishment of causal connection as a medical probability, as required under this section, nonmedical evidence would be of no avail. Renfro v. San Juan Hosp., 1965-NMSC-067, 75 N.M. 235, 403 P.2d 681.

"Accident" is required. — A causal connection between work done and an injury is insufficient; an accident is required. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

Causal connection between false representation and injury. — Where an employer proves a previous permanent disability and shows that by medical testimony the risk of injury in his employment has increased, the employer has established a causal connection between the false representation and the injury. Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M. 683, 604 P.2d 821.

When no causal connection between false representation and injury. — If an employee proves that his physical condition and disability is such that he was able to perform the same duties in his prior employment without any physical difficulty, he was able to perform the same duties before he made application for his present employment, and he was able to perform the duties of his present employment, no causal connection exists between the false representation and the injury. Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M. 683, 604 P.2d 821.

B. BURDEN OF PROOF.

Burden on plaintiff to prove death result of employment. — Burden is on plaintiff to prove the infarction and consequent death were direct results of decedent's employment, and plaintiff is required to establish this causal connection as a medical probability by expert medical testimony. Bertelle v. City of Gallup, 1970-NMCA-095, 81 N.M. 755, 473 P.2d 369.

Where defendants deny that plaintiff's alleged disability was natural and direct result of an accident, the workman (worker) must prove the causal connection as a medical probability by expert medical testimony and failure to establish such causal connection prevents recovery. Gallegos v. Kennedy, 1968-NMSC-170, 79 N.M. 590, 446 P.2d 642, Tom Growney Equip. Co., 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

Denial that a disability is a natural and direct result of an accident is a condition precedent to the duty of a workman (worker) to establish the medical probability of a causal connection. Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

For an accidental injury to be compensable, the disability must be a natural and direct result of the accident and where such a result is denied, causation must be established as a medical probability by expert medical testimony. This causation requirement applies to any claim for worker's compensation; it makes no difference whether the claim is for a first, second or successive accidental injury. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

Burden of proof of causal connection. — Subsection B places the burden of persuasion upon the widow. The statute did not shift the burden of persuasion once she introduced evidence which would have supported a finding in her favor and even after the introduction of conflicting evidence, it remained her burden to convince the trial court of such causal connection as a medical probability. Mayfield v. Keeth Gas Co., 1970-NMCA-032, 81 N.M. 313, 466 P.2d 879.

Where widow had the burden of persuading the trial court as to causation of death and doctor's testimony raised a conflict in regard to the widow's theory of death, no benefit resulted to widow. Mayfield v. Keeth Gas Co., 1970-NMCA-032, 81 N.M. 313, 466 P.2d 879.

This section imposes the burden upon the claimant to establish a causal connection between the disability and the accident as a medical probability by expert medical testimony, when the defendant has denied that the disability is a natural and direct result of the accident. If the expert testimony is conflicting, it must be such as to convince the trial court of such causal connection as a medical probability. Torres v. Kennecott Copper Corp., 1966-NMSC-160, 76 N.M. 623, 417 P.2d 435; Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212.

This section does not require that plaintiff in a psychological injury case establish that other life stresses played no part in his disability. Lopez v. Smith's Mgmt. Corp., 1986-NMCA-054, 106 N.M. 416, 744 P.2d 544, cert. quashed, 106 N.M. 405, 744 P.2d 180 (1987).

It is incumbent upon claimant to present one or more medical experts to testify that in his or their opinion there is a medical probability of causal connection between the accident alleged and the disability claimed. Renfro v. San Juan Hosp., Inc., 1965-NMSC-067, 75 N.M. 235, 403 P.2d 681.

Where causation is denied the workman (worker) must establish that causal connection is a medical probability by expert medical testimony. Chaffins v. Jelco, Inc., 1971-NMCA-071, 82 N.M. 666, 486 P.2d 75, cert. quashed, 83 N.M. 22, 487 P.2d 1092.

Where causal connection is denied by an employer, in order to prevail, it is incumbent upon a claimant to present one or more qualified medical experts to testify that in his or their opinion there is a causal connection as a medical probability as opposed to possibility. Corzine v. Sears, Roebuck & Co., 1969-NMCA-051, 80 N.M. 418, 456 P.2d 892, cert. denied, 80 N.M. 388, 456 P.2d 221; Yates v. Matthews, 1963-NMSC-038, 71 N.M. 451, 379 P.2d 441; Weston v. Carper Drilling Co., 1966-NMSC-235, 77 N.M. 220, 421 P.2d 435; Anderson v. Mackey, 1979-NMSC-041, 93 N.M. 40, 596 P.2d 253.

It is not the burden of movants to show there was no possibility of securing medical opinion evidence to the effect that there existed the probable causal connection required by this statute. Bertelle v. City of Gallup, 1970-NMCA-095, 81 N.M. 755, 473 P.2d 369.

C. PROOF OF CAUSATION.

Lay testimony may establish cause of accident. — Subsection B indicates that proof of causation by a health care provider is required to establish a connection between a worker's injury and disability if the employer denies that the disability resulted from a worker's accident; it does not, however, require expert testimony to establish the cause of the worker's accident. This aspect of proof may be established by either expert or lay testimony. Garcia v. Borden, Inc., 1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, cert. denied, 115 N.M. 409, 852 P.2d 682.

Testimony by the claimant about his reaction from the use of chlorine to clean equipment, stating that the chlorine caused him to become dizzy, that this dizziness continued, causing his fall a few minutes later in the locker room, was sufficient to explain the cause of his fall and the judge reasonably determined from this evidence that the worker's fall arose from a risk related to his employment. Although the effect of chlorine upon an individual is a matter that may properly be presented by expert testimony, the judge did not err in permitting the worker to testify concerning his own personal reaction following his use of chlorine during his work. Garcia v. Borden, Inc., 1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, cert. denied, 115 N.M. 409, 852 P.2d 682.

Section only requires claimant to prove, by reasonable medical probability, causal connection between the accident and the disability and does not require the claimant to prove disability by a reasonable medical certainty. Archuleta v. Safeway Stores, Inc., 1986-NMCA-092, 104 N.M. 769, 727 P.2d 77.

Evidence sufficient to support causal connection. — Evidence was sufficient to support a causal connection between an accidental injury sustained in the workplace and the disability that subsequently arose. Feese v. U.S. W. Serv. Link, Inc., 1991-NMCA-121, 113 N.M. 92, 823 P.2d 334, cert. withdrawn, 113 N.M. 23, 821 P.2d 1060.

This section requires that medical testimony be produced to establish causal connection between an accident and disability not by direct and uncontroverted evidence, but as a medical probability, such as opinion evidence of a medical expert. Corzine v. Sears, Roebuck & Co., 1969-NMCA-051, 80 N.M. 418, 456 P.2d 892, cert. denied, 80 N.M. 388, 456 P.2d 221.

Expert medical testimony must establish causation. — Except in the most obvious cases, causation must be established by expert medical testimony. Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M. 683, 604 P.2d 821.

Insufficient evidence to support worker's compensation judge's ruling as to causation. — Where worker, employed as a laborer and labor foreman, was carrying a twenty-five pound chipping hammer down from a scaffolding platform, stepped on an oily or slick spot on the scaffolding, and landed on his back causing injuries to his back, neck and upper extremities, substantial evidence did not support the workers' compensation judge's determination that worker failed to prove causation between the accident and injuries to a reasonable degree of medical probability when one medical expert provided clear evidence of causation to a reasonable degree of medical probability between worker's accident and the diagnosed injuries and when there was no other medical testimony to the contrary. Trujillo v. Los Alamos Nat'l Lab., 2016-NMCA-041, cert. denied.

It is incumbent upon claimant to present one or more medical experts. — Medical testimony is necessary to establish the causal connection between an accidental injury and a resulting compensable disability, but it does not resolve the questions of the date of commencement or the degree of compensable disability. Sedillo v. Levi-Strauss Corp., 1982-NMCA-069, 98 N.M. 52, 644 P.2d 1041, cert. denied, 98 N.M. 336, 648 P.2d 794.

Expert testimony in language that connotes statutory requirements. — The medical expert need not state his opinion as to the causal connection between accident and disability in positive, dogmatic language or in the exact language of the section, but he must testify in language the sense of which reasonably connotes precisely what the section categorically requires. Gammon v. Ebasco Corp., 1965-NMSC-015, 74 N.M. 789, 399 P.2d 279; Trujillo v. Beaty Elec. Co., 1978-NMCA-021, 91 N.M. 533, 577 P.2d 431; Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, 120 N.M. 734, 906 P.2d 266.

The medical expert need not state his opinion in positive, dogmatic language or in the exact language of this section, but he must testify in language the sense of which reasonably connotes precisely what the statute categorically requires. Corzine v. Sears, Roebuck & Co., 1969-NMCA-051, 80 N.M. 418, 456 P.2d 892, cert. denied, 80 N.M. 388, 456 P.2d 221.

Medical opinion as to the requisite causal connection must be in language, the sense of which reasonably connotes precisely what the statute categorically requires. Bertelle v. City of Gallup, 1970-NMCA-095, 81 N.M. 755, 473 P.2d 369.

"Medical probability" and "medical possibility" of causation distinguished. — A logical distinction can be made between "medical probability" and "medical possibility" in a workmen's (workers') compensation case. A possible cause only becomes "probable" when in the absence of other reasonable causal explanations it becomes more likely than not that the injury in question was a result of its action. Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Licensed osteopathic physicians and surgeons may give expert medical testimony as to causation. Medina v. Original Hamburger Stand, 1986-NMCA-107, 105 N.M. 78, 728 P.2d 488.

Testimony of four doctors who treated claimant for a back injury was sufficient to prove a causal connection between her lifting forty-pound batteries at work and her disability. Sanchez v. Siemens Transmission Sys., 1991-NMCA-028, 112 N.M. 236, 814 P.2d 104, rev'd on other grounds, 1991-NMSC-093, 112 N.M. 533, 817 P.2d 726.

When doctor unqualified to make opinion on psychological disability. — Where a doctor states that he is not trained in psychological diagnosis or psychology, he is not qualified to state an opinion based upon a medical probability that employee's psychological disability was caused by a job-related accident. Anderson v. Mackey, 1979-NMSC-041, 93 N.M. 40, 596 P.2d 253.

Expert, without pertinent information on prior injuries, cannot give opinion. — The rule, that when pertinent information regarding prior injuries existed about which the expert apparently had no knowledge, his opinion cannot serve as the basis for compliance with this section, is only applicable when there is uncontradicted testimony of a medical expert that the information on prior injuries is pertinent. Mendez v. Southwest Cmty. Health Servs., 1986-NMCA-066, 104 N.M. 608, 725 P.2d 584, cert. denied, 104 N.M. 632, 725 P.2d 832.

Once causation is established by appropriate medical evidence, the absence of medical testimony as to the extent of disability does not bar a disability award. The extent of disability may be established by the plaintiff. Garcia v. Genuine Parts Co., 1977-NMCA-007, 90 N.M. 124, 560 P.2d 545, cert. denied, 90 N.M. 254, 561 P.2d 1347; Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d 1204, cert. denied, 92 N.M. 532, 591 P.2d 286 (1979).

Burden not met where several factors could have caused disability. — The burden of proof, under facts such as are present here, is not met if the medical testimony only goes so far as to establish that any one of the several separate factors involved, within the realm of medical probability, could have caused the disability, leaving it to the trier of the facts to take his choice. Such testimony does not rise above speculation and surmise. Renfro v. San Juan Hosp., Inc., 1965-NMSC-067, 75 N.M. 235, 403 P.2d 681.

Where doctor's opinion fell short of raising issue. — Doctor's opinion that an infarction would more likely result from exertion than from sleeping or slight physical activity fell far short of raising a genuine issue of fact on the causal connection as a medical probability between the infarction and decedent's work activities, or the strain he sustained in the performance thereof. Bertelle v. City of Gallup, 1970-NMCA-095, 81 N.M. 755, 473 P.2d 369.

D. STANDARD OF PROOF.

It is incumbent upon claimant to present one or more medical experts. — If a disability is established by expert medical testimony to be the result of an accidental injury, as a medical probability, as opposed to a medical possibility, the requirements of the section have been satisfied. Stuckey v. Furr Food Cafeteria, 1963-NMSC-064, 72 N.M. 15, 380 P.2d 172.

This section provides that compensation shall be allowed only when the workman (worker) suffers a disability established by expert medical testimony to be the natural and direct result of the accident as a medical probability, and it is not sufficient that causal connection be established by expert testimony as merely a medical possibility. Gammon v. Ebasco Corp., 1965-NMSC-015, 74 N.M. 789, 399 P.2d 279.

The 1959 statute requires the workman (worker) to establish a causal connection between the accidental injury and the claimed disability as a medical probability by expert medical testimony, if it be denied that the disability is a natural and direct result of the accident. Stuckey v. Furr Food Cafeteria, 1963-NMSC-064, 72 N.M. 15, 380 P.2d 172.

"Medical possibility" insufficient for award of compensation. — An award of compensation should be denied: (1) if a court must speculate as to whether a workman's (worker's) disability was caused by the accident; or (2) if an expert testifies that as a medical possibility, as opposed to a medical probability, the workmen's (workers') disability was caused by the accident. Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Medical testimony on causation does not require proof to absolute certainty. Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M. 683, 604 P.2d 821.

E. MEDICAL EVIDENCE RULE.

Uncontradicted medical opinion as conclusive of causal connection. — Where medical opinion based on the facts has been expressed and is uncontradicted, the evidence is conclusive as to the establishment, as a medical probability, of the causal connection between the accident and the disability as required in this section. Casaus v. Levi Strauss & Co., 1977-NMCA-063, 90 N.M. 558, 566 P.2d 107, cert. denied, 90 N.M. 636, 567 P.2d 485.

Where causal connection has been denied and must be established by medical testimony as a medical probability, and where medical opinion based on the facts has been expressed and is uncontradicted, the evidence is conclusive upon the court as trier of the facts. Ross v. Sayers Well Servicing Co., 1966-NMSC-099, 76 N.M. 321, 414 P.2d 679.

The evidence being uncontradicted, the trial court should have found that plaintiff suffered a disability between March 22, 1967 and September 7, 1967, as a natural and direct result of the accident. Mares v. City of Clovis, 1968-NMCA-102, 79 N.M. 759, 449 P.2d 667.

The uncontradicted medical evidence rule states that where medical opinion based on the facts has been expressed and uncontradicted, the evidence is conclusive upon the court as trier of fact. The rule is based on Subsection B, which requires that the claimant prove a causal connection between the disability and the accident as a medical probability by expert medical testimony. Beltran v. Van Ark Care Ctr., 1988-NMCA-043, 107 N.M. 273, 756 P.2d 1.

The uncontradicted medical evidence rule has no application where the testimony claimed to be uncontroverted is equivocal, contradicted, or subject to reasonable doubt. Beltran v. Van Ark Care Ctr., 1988-NMCA-043, 107 N.M. 273, 756 P.2d 1.

Trier of fact may weigh testimony. — The testimony of a doctor concerning whether a workman's (worker's) injury, suffered in the course of his employment, caused the disability for which compensation was sought, was opinion testimony and as such was not conclusive, and the trier of the facts could accept, reject or give such weight only as it deemed the same entitled to have, even though uncontradicted. Montano v. Saavedra, 1962-NMSC-095, 70 N.M. 332, 373 P.2d 824.

Medical opinion as to the claimant's ability to perform heavy labor does not establish causal connection between disability and accident as required by this section. Weston v. Carper Drilling Co., 1966-NMSC-235, 77 N.M. 220, 421 P.2d 435.

Uncontradicted medical evidence rule is an exception to the general rule that a trial court can accept or reject expert opinion as it sees fit. The rule is based on Subsection B of this section, which requires the worker to prove causal connection between disability and accident as a medical probability by expert medical testimony. Because this section requires a certain type of proof, uncontradicted evidence in the form of that type of proof is binding on the trial court. Hernandez v. Mead Foods, Inc., 1986-NMCA-020, 104 N.M. 67, 716 P.2d 645, Banks v. IMC Kalium Carlsbad Potash Co., 2002-NMCA-016, 133 N.M. 199, 62 P.3d 290, aff'd, 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.

Subsection B and the uncontradicted medical evidence rule only apply to the causation issue; on other issues, such as percentage of disability, the medical testimony may be contradicted by the other facts and circumstances of the case. Hernandez v. Mead Foods, Inc., 1986-NMCA-020, 104 N.M. 67, 716 P.2d 645.

Uncontradicted testimony need not be accepted as true if (1) the witness is shown to be unworthy of belief, or (2) his testimony is equivocal or contains inherent improbabilities, (3) concerns a transaction surrounded by suspicious circumstances, or (4) is contradicted, or subjected to reasonable doubt as to its truth or veracity, by legitimate inferences drawn from the facts and circumstances of the case. Hernandez v. Mead Foods, 1986-NMCA-020, Inc., 104 N.M. 67, 716 P.2d 645.

F. PREEXISTING CONDITION.

Causal connection even where preexisting condition. — There was substantial evidence to establish a causal connection between the plaintiff's accidental injury and his resulting disability, even though his injury was attributable in part to a preexisting condition. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Preexisting condition does not diminish right to benefits. — It does not diminish a worker's entitlement to benefits that a preexisting condition may make the worker more susceptible to injury, nor does it matter that without the preexisting condition the work-related injury might have been less disabling or perhaps not disabling at all. Edmiston v. City of Hobbs, 1997-NMCA-085, 123 N.M. 654, 944 P.2d 883, cert. denied, 123 N.M. 626, 944 P.2d 274.

Work-related injury caused by aggravation of preexisting condition is compensable. — Where worker appealed a workers' compensation judge's (WCJ) decision denying worker's claim for permanent partial disability and medical benefits based on a finding that worker's disability was not caused by his work-related accident, the WCJ erred in denying worker's claim, because although the work-related accident did not cause worker's disability, worker met his burden of proving that his work-related accident caused an aggravation of his preexisting condition resulting in his disability and his inability to work. Molinar v. Larry Reetz Constr., Ltd., 2018-NMCA-011, cert. denied.

Appointment of injury to work-related and preexisting causes. — 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; benefits are not apportioned according to different causal factors as long as the disability is a natural and direct result of the accident. Edmiston v. City of Hobbs, 1997-NMCA-085, 123 N.M. 654, 944 P.2d 883, cert. denied, 123 N.M. 626, 944 P.2d 274.

Failure to prove accident aggravated preexisting condition. — Where widow failed to prove by expert medical testimony that deceased's weight gain was caused or resulted from the employee's accident and treatment, she failed to prove that the accident or treatment aggravated a preexisting condition. Mayfield v. Keeth Gas Co., 1970-NMCA-032, 81 N.M. 313, 466 P.2d 879.

Effect of earlier injury on present disability. — Where the claimant did not inform his doctor of an earlier back injury and his doctor did not learn of that injury until cross-examination at trial where he stated that he could not judge the possible effect of the earlier accident on claimant's present disability, evidence indicating plaintiff's prior injury was to another part of his back was sufficient with doctor's testimony to establish a causal connection between claimant's later injury and his present disability. Maes v. John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009.

Subsequent disability result of same accident. — Even though an accident causes a disability which results in payment of compensation for a time, the employer is not necessarily relieved of the further duty to pay compensation for a subsequent disability, which is the "natural and direct result" of the same accident. Linton v. Mauer-Neuer Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126.

Disability resulting from a second accident, regardless of a preexisting condition, is compensable by the employer and compensation insurer at the time of the second accident. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.

Uncontradicted medical testimony. — Where widow's primary theory of causation of death was that her husband developed a circulatory problem due to the inactivity of the right extremity following accident, that as a result of this circulatory problem an embolism developed in the right leg and that death resulted from a pulmonary embolism, and the widow introduced evidence, through an expert medical witness, in support of her theory, her expert's testimony, if uncontradicted, was sufficient to meet the causation requirement of this section. Mayfield v. Keeth Gas Co., 1970-NMCA-032, 81 N.M. 313, 466 P.2d 879.

Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442 (1967).

For note, "Workmen's Compensation in New Mexico: Preexisting Conditions and the Subsequent Injury Act," see 7 Nat. Resources J. 632 (1967).

For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579 (1988).

For case note, "WORKERS' COMPENSATION LAW: A Clinical Psychologist Is Qualified to Give Expert Medical Testimony Regarding Causation: Madrid v. Univ. of Cal., d/b/a Los Alamos National Laboratory," see 18 N.M.L. Rev. 637 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 242 to 258, 564 to 601.

Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in course of employment, 50 A.L.R.2d 363.

Liability for injury or death on or near golf course, 82 A.L.R.2d 1183, 53 A.L.R.4th 282.

Suicide as compensable under Workmen's Compensation Act, 15 A.L.R.3d 616.

Injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment, 47 A.L.R.3d 566.

Employer's liability for injury caused by food or drink purchased by employee in plant facilities, 50 A.L.R.3d 505.

Workers' Compensation: Compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.

Workers' compensation: coverage of injury occurring in parking lot provided by employer, while employee was going to or coming from work, 4 A.L.R.5th 443.

Workers' compensation: coverage of injury occurring between workplace and parking lot provided by employer, while employee is going to or coming from work, 4 A.L.R.5th 585.

Eligibility for workers' compensation as affected by claimant's misrepresentation of health or physical condition at time of hiring, 12 A.L.R.5th 658.

Workers' compensation: coverage of employee's injury or death from exposure to the elements - modern cases, 20 A.L.R.5th 346.

Workers' compensation: Law enforcement officer's recovery for injury sustained during exercise of physical recreation activities, 44 A.L.R.5th 569.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment, 47 A.L.R.5th 801.

Employee's injuries sustained in use of employer's restroom as covered by workers' compensation, 80 A.L.R.5th 417.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli - Right to compensation under particular statutory provisions, 97 A.L.R.5th 1.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli compensability under particular circumstances, 107 A.L.R.5th 441, 112 A.L.R.5th 509.

99 C.J.S. Workmen's Compensation §§ 152 to 257; 100 C.J.S. Workmen's Compensation § 461.