The right to the compensation provided for in this act [Chapter 52, Article 1 NMSA 1978], in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:

A. at the time of the accident, the employer has complied with the provisions thereof regarding insurance;

B. at the time of the accident, the employee is performing service arising out of and in the course of his employment; and

C. the injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted.

History: Laws 1937, ch. 92, § 4; 1941 Comp., § 57-906; 1953 Comp., § 59-10-6; Laws 1973, ch. 240, § 4.

Cross references. — For effect of application of provision of act, see 52-1-6 NMSA 1978.

For meaning of "injury by accident arising out of and in the course of employment," see 52-1-19 NMSA 1978.

I. GENERAL CONSIDERATION.

No willful and intentional conduct outside of Workers' Compensation Act. — Where defendant, who was plaintiff's employer, modified a rock crusher by removing the protective shield covering the flywheel and adding a step next to the flywheel to make it easier to clear jams and to perform maintenance; plaintiff was injured by the flywheel as plaintiff knelt on the step to clear a jam; there was no evidence that defendant ordered plaintiff to enter the crusher to clear a rock jam; plaintiff was the person designated to turn off the crusher prior to clearing jams; plaintiff chose not to turn off the crusher; defendant trained plaintiff to shut off the crusher to clear jams; and plaintiff was told by two fellow employees to come out of the crusher, plaintiff failed to prove that defendant engaged in intentional conduct that resulted in injury to plaintiff. Chairez v. James Hamilton Constr. Co., 2009-NMCA-093, 146 N.M. 794, 215 P.3d 732, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Dual-persona and dual-transaction doctrines. — Under the dual-persona doctrine, an employer may be treated as a third party, vulnerable to tort suit by an employer if, and only if, the employer possesses a second persona sufficiently independent from and unrelated to the employer's status as employer. A variation of the dual-persona doctrine is the dual-transaction doctrine where an employee is involved in two transactions with the same person: one involving the employee's employer, and the other involving an injury that is entirely unrelated to the employee's employment except for the fact that the injury happens to be caused by the same person who employs the employee. Espinosa v. Albuquerque Pub. Co., 1997-NMCA-027, 123 N.M. 605, 943 P.2d 1058, cert. quashed 124 N.M. 589, 953 P.2d 1087 (1998).

Dual persona doctrine not applicable. — Where the employer modified a rock crusher by removing the protective shield covering the flywheel and adding a step next to the flywheel to make it easier to clear jams and to perform maintenance; and the worker was injured by the flywheel as the worker knelt on the step to clear a jam, the employer did not take on a separate persona as an equipment manufacturer, thereby losing its protection under the Workers' Compensation Act. Chairez v. James Hamilton Constr. Co., 2009-NMCA-093, 146 N.M. 794, 215 P.3d 732, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Special employer doctrine. — Defendant was a special employer where worker was an employee of a contractor that provided contract employees to governmental agencies, defendant selected worker from a list of qualified candidates supplied by the contractor, defendant provided day-to-day technical direction to its contract employees and defendant could direct the contractor to remove any contract employee from the contract with defendant, the contractor was responsible for all decisions relating to hiring, firing, demotions, compensation and employee benefits, all contract employees were considered employees of the contractor, the contractor paid the worker a wage and benefits. Hamberg v. Sandia Corp., 2007-NMCA-078, 142 N.M. 72, 162 P.3d 909, aff'd, 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209.

An employer may be considered a special employer if the following factors are met: (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done is essentially that of the special employer; and (3) the special employer has the right to control the details of the work. Hamberg v. Sandia Corp., 2007-NMCA-078, 142 N.M. 72, 162 P.3d 909, aff'd, 2008-NMSC-015, 143 N.M. 601, 179 P.3d 1209.

Waiver of sovereign immunity by Indian casino. — Where worker was injured during the course of her employment at the Isleta resort and casino, and where worker filed a workers' compensation complaint with the workers' compensation administration, naming Isleta casino, the insurance company with which Isleta casino maintained workers' compensation insurance, and the third-party administrator of Isleta casino's workers' compensation insurance policy, and where the workers' compensation judge granted a defense motion to dismiss on grounds of sovereign immunity, the district court erred in granting the motion to dismiss, because the 2015 Indian Gaming Compact, which addressed workers' compensation for tribal gaming enterprise employees, contains an express and unequivocal waiver of sovereign immunity and because worker is a third-party beneficiary to the workers' compensation insurance policy between Isleta casino and its insurance company. Mendoza v. Isleta Resort & Casino, 2018-NMCA-038, cert. granted.

Course and scope of employment. — Where a worker who was employed as a "greeter" for his employer was injured when he apprehended a customer carrying a box after a security alarm went off, indicating that the customer was leaving the store without having paid for the merchandise, and where the worker was not given, shown or knew about specific instructions as to the employer's policy on apprehension of shoplifters, the worker's job instructions were to stop customers and check receipts and merchandise if the security system was activated or if merchandise was not in a bag, the employer had no clear policy that a greeter was not to apprehend a shoplifter, and the worker's job description did not state that he had to call security or management when a customer set off the security alarm, the worker's accident arose out of and occurred within the course and scope of his employment. Grimes v. Wal-Mart Stores Inc., 2007-NMCA-028, 141 N.M. 249, 154 P.3d 64, cert. denied, 2007-NMCERT-003, 141 N.M. 401, 156 P.3d 39.

Horseplay. — In New Mexico, an incident constitutes compensable horseplay either if horseplay was a regular incident of employment or if horseplay was not a substantial deviation from employment, considering the extent of the duration, the completeness of the duration, the extent to which horseplay was an accepted part of the employment and the extent to which the nature of the employment might include some horseplay. Fuerschbach v. Southwest Airlines Co., 439 F. 3d 1197 (10th Cir. 2006), 44 A.L.R. 6th 723 (2006).

Date from which notice measured. — The date of disability determines the date from which notice is to be measured. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

Work-induced aggravation of injury resulting in disability constituted accident. — Where employee testified that his work activities at subsequent employers aggravated his initial injury, supported by medical expert's testimony, this work-activity-induced aggravation of his shoulder resulting in disability constituted the "accident" for which he is required to give notice. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

Nurse injured in care center. — Where defendant care center is in the business of providing care to potentially violent residents, so patient's admission cannot be deemed as "without just cause", and there is no evidence that the care center subjectively expected the injury to occur or "utterly disregarded" such potential risks, and there is no evidence to suggest that, despite fearing for her safety, plaintiff nurse assistant was ordered to enter the room alone and to approach the agitated patient at a close distance alone, there are no exceptions applicable to plaintiff's claims for injury and the New Mexico Worker's Compensation Act's exclusivity provision bars plaintiff's claims. Paehl v. Lincoln Cnty. Care Ctr., Inc., 466 F. Supp.2d 1249 (D.N.M. 2004).

Act not invalid class legislation. — Contention that insofar as negligent employers are relieved from the burden of contribution the Workmen's [Workers'] Compensation Act is exemplary of invalid class legislation is devoid of merit. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.

Workmen's [Workers'] Compensation Act abrogates or modifies the Joint Tortfeasor's Contribution Act to the extent that it has application to the liability of an employer to an employee. If the basis for employer's liability is the injuries to its employee, it is limited by the Workmen's [Workers'] Compensation Act, and there can be no contribution. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.

Purpose of workmen's [workers'] compensation laws is to provide not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate. Sanchez v. Hill Lines, Inc., 123 F. Supp. 42 (D.N.M. 1954).

Primary purpose of Workmen's [Workers'] Compensation Act is to keep an injured workman [worker] and his family at least minimally secure financially; public policy demands it. Aranda v. Mississippi Chem. Corp., 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821; Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981).

Workmen's [Workers'] Compensation Act expresses intention and policy of state that employees who suffer disablement as a result of injuries causally connected to their work shall not become dependent upon the welfare programs of the state, but shall receive some portion of the wages they would have earned, had it not been for the intervening disability. Casias v. Zia Co., 1979-NMCA-068, 93 N.M. 78, 596 P.2d 521, cert. denied, 93 N.M. 8, 595 P.2d 1203.

Act does not create presumption of employer's liability. — Voluntary payment of workmen's [workers'] compensation benefits does not, by itself, create a presumption that the employer is liable. Wilson v. Richardson Ford Sales, Inc., 1981-NMSC-123, 97 N.M. 226, 638 P.2d 1071.

Workmen's [Workers'] Compensation Act does not look to fault of employer; instead, the employer is liable to the employee for compensation if the conditions of this section are met. Taylor v. Delgarno Transp., Inc., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445.

Applicability to state employees. — Because the state highway department is not recognized by law as a legal entity distinct from the state itself, the state could not be both employer and third party tortfeasor in an action against the highway department by employees of the public defender's department who were injured while traveling in the course of their employment, and the "dual persona" doctrine did not apply to extend immunity to highway department under the exclusive remedy provisions of the Workers' Compensation Act. Singhas v. N.M. State Hwy. Dep't, 1995-NMCA-089, 120 N.M. 474, 902 P.2d 1077, aff'd, 1997-NMSC-054, 124 N.M. 42, 946 P.2d 645.

Remedy under the New Mexico Workmen's [Workers'] Compensation Act is exclusive. Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir. 1977); Sanford v. Presto Mfg. Co., 1979-NMCA-059, 92 N.M. 746, 594 P.2d 1202.

The New Mexico Workmen's [Workers'] Compensation Act expressly makes the remedies provided by the act the sole and exclusive remedies available to an employee for claims against this employer or insurer. Dickson v. Mountain States Mut. Cas. Co., 1982-NMSC-090, 98 N.M. 479, 650 P.2d 1.

The Workmen's [Workers'] Compensation Act is legislation in derogation of the common law and creates exclusive rights, remedies and procedures. Williams v. Amax Chem. Corp., 1986-NMSC-041, 104 N.M. 293, 720 P.2d 1234, overruled on other grounds by Michaels v. Anglo Am. Auto Auctions, Inc., 1994-NMSC-015, 117 N.M. 91, 869 P.2d 279.

The Workers' Compensation Act is the exclusive remedy for workers harmed by an employer's negligence. Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

Act affords exclusive remedy. — Once the Workmen's [Workers'] Compensation Act has become applicable either through compulsion or election, it affords the exclusive remedy for the injury by the employee or his dependents against the employer and insurance carrier. Mountain States Tel. & Tel. Co. v. Montoya, 1978-NMSC-057, 91 N.M. 788, 581 P.2d 1283.

The plaintiff's sole remedy is provided by the Workmen's [Workers'] Compensation Act. It is not the want of a possible cause of action that precludes the plaintiff from obtaining independent relief; it is the exclusivity provisions of the act. Gonzales v. United States Fid. & Guar. Co., 1983-NMCA-016, 99 N.M. 432, 659 P.2d 318.

Once the Workmen's [Workers'] Compensation Act provides a remedy, that act is exclusive and the claimant has no right to bring an action in common-law negligence against his employer. Galles Chevrolet Co. v. Chaney, 1979-NMSC-027, 92 N.M. 618, 593 P.2d 59.

If an employer falls within the scope of the Workers' Compensation Act, the benefits and remedies provided therein are the exclusive remedy for that employer's workers who are injured or killed in accidents "arising out of and in the course of" their employment. Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

Estate of deceased worker not entitled to recover under employer's uninsured motorist insurance. — Where estate of decedent sought to recover damages under decedent's employer's uninsured/underinsured motorist coverage after decedent was killed in the course of his employment by a co-worker operating an employer-owned motor vehicle, decedent's estate was not entitled to recover damages under the employer's uninsured motorist insurance, because the uninsured motorist statute, 66-5-301(A) NMSA 1978, only benefits persons "legally entitled to recover damages from owners or operators of uninsured motor vehicles", and under the Workers' Compensation Act (WCA), 52-1-1 to -70 NMSA 1978, an employee who was injured in a workplace accident caused by an employer or its representative may only seek a remedy authorized under the WCA, and under the WCA such a employee is not legally entitled to recover damages under the uninsured motorist statute. Vasquez v. American Cas. Co. of Reading, 2017-NMSC-003.

Proceedings under Workmen's [Workers'] Compensation Act are exclusive, completely preempting any other action than is set out in the act. Sanchez v. Hill Lines, Inc., 123 F. Supp. 42 (D.N.M. 1954).

Exclusivity provision applies to injuries incurred during horseplay. — Where worker was subjected to a mock arrest as a prank organized by worker's supervisor to celebrate the end of worker's probationary period, worker's tort action of psychological injuries was barred by the exclusivity provisions of the Workers' Compensation Act because worker alleged that the injuries were proximately caused by horseplay arising out of and in the cause of worker's employment. Fuerschback v. Sw. Airlines Co., 439 F. 3d 1197 (10th Circ. 2006), 44 A.L.R. 6th 723 (2006).

Human rights claim not barred. — The plaintiff's claim of sex discrimination under the New Mexico Human Rights Act (NMHRA), Chapter 28, Article 1 NMSA 1978, was not barred by the exclusivity provision in this section, even though her claim for worker's compensation and for violation of the NMHRA stemmed from the same set of facts. Sabella v. Manor Care, Inc., 1996-NMSC-014, 121 N.M. 596, 915 P.2d 901.

A temporary employer was immune from a common law tort claim of a temporary employee since it met the test of special employer; it had contractually assured that the general employer would provide workers' compensation coverage, and the temporary employee had signed a contract agreeing to look to the general employer for his remedy for on-the-job injuries. Vigil v. Digital Equip. Corp., 1996-NMCA-100, 122 N.M. 417, 925 P.2d 883, cert. denied, 122 N.M. 279, 923 P.2d 1164.

Employee not liable for injury or death of co-employee. — Under the Workmen's Compensation Act, an employee of an employer who has complied with the requirements of the act is not subject to liability under the common law for the injury or death of a co-employee. Matkins v. Zero Refrigerated Lines, Inc., 1979-NMCA-095, 93 N.M. 511, 602 P.2d 195.

Loss of consortium claim barred. — Since workers' compensation was the exclusive remedy of a deceased employee's survivors, the claim of the employee's husband for loss of consortium was barred as a remedy at law under the exclusive remedy provisions of the Workers' Compensation Act. Singhas v. N.M. State Hwy. Dep't, 1995-NMCA-089, 120 N.M. 474, 902 P.2d 1077, aff'd, 1997-NMSC-054, 124 N.M. 42, 946 P.2d 645.

An action for loss of consortium by the spouse of an injured worker is barred by the exclusivity provisions of the Worker's Compensation Act. Archer v. Roadrunner Trucking, Inc., 1997-NMSC-003, 122 N.M. 703, 930 P.2d 1155.

Because the Workers' Compensation Act bars "derivative" actions for loss of consortium by the spouse of an injured worker, an unmarried significant other's consortium claim is not viable because it is derived from the injuries to the plaintiff. Paehl v. Lincoln Cnty. Care Ctr., Inc., 466 F.Supp.2d 1249 (D.N.M. 2004).

Actual intent test overruled. — The New Mexico Supreme Court expressly overrules all case law that has required allegation or proof of an employer's actual intent to injure a worker as a precondition to a worker's tort recovery. Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.

Willful or intentional conduct outside of Workers' Compensation Act. — Willfulness renders a worker's injury non-accidental, and therefore outside the scope of the Workers' Compensation Act, when: (1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury. Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.

Delgado requirements. — The critical measure for Delgado claims is whether the employer has, in a specific dangerous circumstance, required the worker to perform a task where the employer is or should clearly be aware that there is a substantial likelihood the worker will suffer injury or death by performing the task. Richey v. Hammond Conservancy Dist., 2015-NMCA-043.

Delgado requirements satisfied. — Where worker's allegations were that employer was notified that the specific equipment worker was required to use was dangerous and had nearly caused serious injuries to several employees, that employer required worker to use the equipment in spite of this knowledge and over worker's objections, and as a result, worker was severely injured using the equipment, worker satisfied the requirements of a claim under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272; Richey v. Hammond Conservancy Dist., 2015-NMCA-043.

Delgado requirements not satisfied. — Where employer operated a facility to receive pipeline inspection gauges or "pigs" that clean out deposits in the pipelines; the pipeline pig receiver had been modified to accept a longer "smart" pig that detected problems in the pipeline; worker was employed to retrieve the pig from the receiver; due to the modification of the receiver, worker was unable to determine if a pig was lodged in the receiver, to determine the pressure behind a pig, or to relieve pressure in the receiver; worker had to stand in front of the receiver opening to determine the location of a pig; worker was injured when a pig became dislodged and struck the worker; worker received training on operating the original receiver, but not the modified receiver; when the receiver was modified, a concern was expressed that a pig could get stalled in the receiver with pressure behind it; to mitigate the risk, a barrel extension was added to the receiver and a person was assigned to relieve pressure if necessary; when the smart pig operation was completed, employer removed the barrel extension, but did not assign a person to relieve pressure in the receiver during pig retrieval; employer refused offers from employees to change the receiver back to its original configuration; there was no evidence that employer's decision to keep the receiver in its modified state was profit-motivated in disregard for safety; and when worker was injured, worker was performing a routine task that worker had performed at least ten times before, worker failed to satisfy the requirements of a claim under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148; May v. DCP Midstream, L.P., 2010-NMCA-087, 148 N.M. 595, 241 P.3d 193, cert. quashed, 2001-NMCERT-009, 269 P.3d 904.

Psychological disability incurred outside provisions of Section 52-1-24 NMSA 1978. — Since a workers' compensation judge determined that the worker suffered a work related mental disability, but that the disability was not compensable since it fell outside the definition of primary mental impairment, the exclusive remedy provision of the Workers' Compensation Act did not bar the worker's prima facie tort claim against her employer and supervisor. Beavers v. Johnson Controls World Servs., Inc., 1995-NMCA-070, 120 N.M. 343, 901 P.2d 761, cert. denied, 120 N.M. 68, 898 P.2d 120.

Aid in construction of act. — The maxim "expressio unius est exclusio alterius," is only an aid to construction and does not apply to provisions of Workmen's [Workers'] Compensation Act, "injuries sustained in extra-hazardous duties incident to the business," and "The right to the compensation provided for in this act, . . . for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases" when the conditions and circumstances stated and required by this section are present. Wilson v. Rowan Drilling Co., 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365 (decided under former law).

Employer is not subject to liability in addition to Workmen's [Workers'] Compensation Act even where the employer voluntarily enters into a contract which also seeks indemnity. Gulf Oil Corp. v. Rota-Cone Field Operating Co., 1972-NMCA-167, 84 N.M. 483, 505 P.2d 78, writ quashed, 85 N.M. 636, 515 P.2d 640.

Legislature intended to declare void any contract provisions which seek to impose additional liability on an employer. Gulf Oil Corp. v. Rota-Cone Field Operating Co., 1972-NMCA-167, 84 N.M. 483, 505 P.2d 78, writ quashed, 85 N.M. 636, 515 P.2d 640 (1973).

Limitation of employer's liability for injuries sustained by an employee covered by the Workmen's [Workers'] Compensation Act covers all instances where that injury is sought to be made the basis for further and additional liability by the employee or others in his behalf, and indirect liability for such injury is also foreclosed both by the terms of the act and because the employer's liability for such injury is not in tort. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.

Grants amnesty to employer where no indemnity contract. — The exclusive remedy provision of the Workmen's [Workers'] Compensation Act grants amnesty to an employer for all causes of action relating to employees' injuries, regardless of the question of independent breach of duty, where there is no express contract of indemnity. Royal Indem. Co. v. Southern Cal. Petroleum Corp., 1960-NMSC-053, 67 N.M. 137, 353 P.2d 358.

Sexual harassment. — Plaintiff's injuries, resulting from sexual harassment in the workplace, were not barred by the exclusivity provisions of the Worker's Compensation Act. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.

The words "accident" or "accidental injury" should be liberally construed. Stevenson v. Lee Moor Contracting Co., 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.

Claimant has burden of proving compensable accident. Romero v. S.S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, cert. denied, 95 N.M. 593, 624 P.2d 535, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

Applicability to intentional acts. — Exclusivity provisions of Workers' Compensation Law (Chapter 52, Article 1 NMSA 1978) apply to injury to claimant's hand caused by manager intentionally slamming locker door. Martin-Martinez v. 6001, Inc., 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351.

Payment of compensation benefits by employer does not relieve claimant's burden of proving a compensable accident. Romero v. S.S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, cert. denied, 95 N.M. 593, 624 P.2d 535, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743; but see Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212; Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

No due process right to greater disability benefits. — An injured worker does not have a due process property right to disability benefits greater than those conferred by the legislature. Casillas v. S.W.I.G., 1981-NMCA-045, 96 N.M. 84, 628 P.2d 329, cert. denied, 96 N.M. 116, 628 P.2d 686, and appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981).

Employer may voluntarily relinquish statutory protection of limited liability. — Although the workmen's [workers'] compensation statute affords an employer release from unlimited liability in exchange for a limited amount of compensation for the injured employee, if the employer desires to voluntarily relinquish his statutory protection, he may do so. City of Artesia v. Carter, 1980-NMCA-006, 94 N.M. 311, 610 P.2d 198, cert. denied, 94 N.M. 628, 614 P.2d 545.

Employee's termination of employment due to disability deemed involuntary. — Where an employee's disability or inability to perform his former job on production causes him to quit the job, for purposes of determining his rights to compensation benefits, the employee did not voluntarily leave his employment. Aranda v. Mississippi Chem. Corp., 1979-NMCA-097, 93 N.M. 412, 600 P.2d 1202, cert. denied, 93 N.M. 683, 604 P.2d 821.

Injury subsequent to discharge. — Workers' Compensation Law (Chapter 52, Article 1 NMSA 1978) is not automatically terminated by the firing or quitting of an employee, but applies to injury occurring during a reasonable period while employee winds up affairs and leaves premises. Martin-Martinez v. 6001, Inc., 1998-NMCA-179, 126 N.M. 319, 968 P.2d 1182, cert. denied, 126 N.M. 532, 972 P.2d 351.

No recovery solely upon claim of payments during investigation period. — A claimant cannot base her recovery solely on the fact that the employer paid benefits during a period when the accident was under investigation. Romero v. S.S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

Claim must be against employer. — Claims based on the Occupational Disease Disablement Act or Workers' Compensation Act can be raised only against an employer. Garrity v. Overland Sheepskin Co., 1996-NMSC-032, 121 N.M. 710, 917 P.2d 1382.

Injured employee may sue third party, other than the employer or an employee of the employer, for negligence in causing the injured employee's accident. Taylor v. Delgarno Transp., Inc., 1983-NMSC-052, 100 N.M. 138, 667 P.2d 445.

Third-party indemnity claim from employer not barred. — The public policy expressed in the workmen's [workers'] compensation statute does not bar a claim for indemnity by the third party from the employer where that claim is based on an express contract of indemnity. City of Artesia v. Carter, 1980-NMCA-006, 94 N.M. 311, 610 P.2d 198, cert. denied, 94 N.M. 628, 614 P.2d 545.

Accidental injury while employed, expenses due to problems exacerbated by injury, fulfills prerequisites. — Findings that plaintiff: (1) suffered an accidental injury while in the course and scope of his employment while inventorying and numbering air conditioners; and (2) incurred medical expenses due to symptomatic problems with his lower back exacerbated by the injury, included the necessary prerequisites for coverage under the Workmen's [Workers'] Compensation Act. DiMatteo v. County of Dona Ana, 1985-NMCA-099, 104 N.M. 599, 725 P.2d 575.

Cause of action for alleged bad faith not separate from claim. — Where plaintiff asserts that the defendant's alleged bad faith denial of plaintiff's claim for compensation was tortious conduct which delayed payment of compensation, and constitutes a basis for a cause of action by plaintiff against the defendant for deceit, bad faith and intentional infliction of emotional distress, the court held that these claims are not separate and distinct from the plaintiff's claim for workmen's [workers'] compensation benefits, and consequently, the award by the state court of compensation benefits to the plaintiff is a bar to the federal court action. Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir. 1977).

Worker's claim for intentional spoliation of evidence against his employer was not barred by the act's exclusive remedy provisions. Coleman v. Eddy Potash, Inc., 1995-NMSC-063, 120 N.M. 645, 905 P.2d 185.

Satisfaction executed with compromise bars action. — Where the plaintiff attempts to bring this federal court action two years later for a claim of bad faith delay arising out of the very dispute which was compromised and settled and the proceeds of which have been retained by the plaintiff, since the receipt and satisfaction of judgment in the prior case stipulated that it was in satisfaction of any other claims against defendant, while the only action which had been pending was the workmen's [workers'] compensation action, this broad satisfaction executed as a part of a compromise settlement arises to an accord and satisfaction and bars the present action by the plaintiff. Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir. 1977).

Full knowledge essential for estoppel by acceptance of benefits. — In order to create estoppel by acceptance of workmen's [workers'] compensation benefits it is essential that the person against whom estoppel is claimed, should have acted with full knowledge of the facts and of his rights. Maynerich v. Little Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.

Reviewable conclusion of law. — Where conclusion that one has suffered an accident is based upon undisputed facts found by the court and incorporated in his decision, the conclusion is one of law, reviewable by the supreme court. Webb v. N.M. Publ'g Co., 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.

Remedy in state court where employer ceases making payments. — Where plaintiff's employer ceases making payments under this act, and enters into a stipulation, approved by the state court, which contains a release of any and all liability whatsoever, where employer again ceases payment, the plaintiff's remedy is in the state court under the act and not in a federal court and is not separate and apart from the claims under the act, which is the exclusive remedy for the denial of a claim for compensation. Escobedo v. Am. Employers Ins. Co., 547 F.2d 544 (10th Cir. 1977).

Where bad faith settlement alleged. — Plaintiff was injured in the course of his employment, and defendant commenced payment of compensation benefits, but after seven months, failed and refused to make further payments; whereupon, the plaintiff filed his claim in the state district court. A settlement was reached and upon a stipulation and joint motion, a judgment was entered by the state court in favor of the plaintiff. The stipulation for judgment contained a release of plaintiff's compensation claims and a release "of any and all other liability whatsoever kind and nature which has either been or could be made as involving or arising out of this proceeding, with the contemplation that any and all claims and proceedings be foreclosed and considered completely resolved and finalized . . . ." Judgment was entered January 15, 1975, and the new complaint was filed August 4, 1975, based on theory that the alleged bad faith of defendant in terminating the payments created a cause of action separate and apart from the claim for compensation which was settled in the state court proceeding and that the state court's disposition of plaintiff's claim is not a bar to this action. The trial court granted motion for summary judgment of dismissal on the grounds that the act clearly contemplates that an employer may deny a workman's [worker's] claim, but if he does, it provides the workman [worker] with a remedy. The remedy is the same whether the denial is made in good faith or bad faith. The act gives the workman [worker] the right to file his claim with the state district court and have the court adjudicate it, and this is the exclusive remedy for the denial of a claim for compensation. Escobedo v. Am. Employers Ins. Co., 547 F.2d 544 (10th Cir. 1977).

Action by third party for negligence prohibited. — Where a third party plaintiff filed its complaint against third party defendant, alleging that the accident was caused by his negligence and was therefore a breach of contract, recovery of any judgment obtained against it over and from third party defendant, and, by a second count, sought similar recovery on the theory of an implied agreement for indemnity in the event of negligence, each of the actions was held prohibited by the exclusive remedy of this section. Royal Indem. Co. v. Southern Cal. Petroleum Corp., 1960-NMSC-053, 67 N.M. 137, 353 P.2d 358.

Illegally employed minor not covered and may sue. — A contract, the performance of which violates a penal statute, is illegal and at least voidable, and will not provide a basis for the assertion of rights under such contract, particularly by the party upon whom the statute imposes the penalty; therefore, an illegally employed minor is not covered by the act and therefore may pursue a common-law action. Maynerich v. Little Bear Enters., Inc., 1971-NMCA-079, 82 N.M. 650, 485 P.2d 984.

Stranger does not have contribution against employer where liable to employee. — Under New Mexico's Workmen's [Workers'] Compensation Act, a stranger to the employer-employee relationship who is liable to the employee for injuries received by the employee in the course of his employment does not have a right of contribution against the employer, even if the employer was also at fault. Sanchez v. Hill Lines, Inc., 123 F. Supp. 42 (D.N.M. 1954).

Company not entitled to contribution from contractor paying under act. — Where contractor's employees were injured in the course of employment by a gas explosion and filed separate actions against the gas company, the gas company would not be entitled to indemnity on a contribution from the contractor since the contractor came within the Workmen's [Workers'] Compensation Act and had paid or was paying all obligations thereunder to employees, and contractor's liability was limited to that under the act in absence of the contract of indemnity between the contractor and the gas company. Beal v. Southern Union Gas Co., 1956-NMSC-113, 62 N.M. 38, 304 P.2d 566.

Question of safety control and special employee for jury. — Where certain showings raised material issues of fact as to whether the safe operation of the crane which killed plaintiff's decedent was its lessor's work and as to whether the lessor had a right to control safety matters, summary judgment on these matters was improper, and whether crane operator was or was not a special employee of lessee in connection with safety matters in the operation of the crane was a factual question for the jury. Fresquez v. Southwestern Indus. Contractors & Riggers, 1976-NMCA-090, 89 N.M. 525, 554 P.2d 986, cert. denied, 90 N.M. 8, 558 P.2d 620.

Special employee within scope of act. — In action to recover damages for personal injury, plaintiff as a special employee of defendant was within the scope of Workmen's [Workers'] Compensation Act, whose remedies were exclusive and which extended its protection to persons who were not employees at common law. Jones v. George F. Getty Oil Co., 92 F.2d 255 (10th Cir. 1937), cert. denied, 303 U.S. 644, 58 S. Ct. 644, 82 L. Ed. 1106 (1938).

Not independent contractor. — Where under a contract of employment an employee was to load concentrates onto freight cars, at a price per ton, and hire his own helpers, but employer had right to discharge employee with or without cause to coerce employee in doing the work suitable to the employer, the employee was not an independent contractor, and was entitled to compensation for injuries. American Employers' Ins. Co. v. Grabert, 1935-NMSC-030, 39 N.M. 173, 42 P.2d 1116.

Compensation not affected because workman [worker] more susceptible. — That a workman [worker] may have been rendered more susceptible to injury than other workmen because of his physical condition cannot affect the compensability of the injury. Webb v. N.M. Publ'g Co., 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.

Allowance of attorney fee. — Where insurance carrier had offered to pay the regular compensation but refused to pay the 50% additional compensation and employment of counsel became necessary to collect the additional amount, allowance of the attorney fee to the employee was proper. Janney v. Fullroe, Inc., 1943-NMSC-042, 47 N.M. 423, 144 P.2d 145.

II. EMPLOYER COMPLIANCE.

Employee's remedies where employer fails to comply. — If the employer utterly fails to comply with the provisions of the Workers' Compensation Act (this article), such as by failing to obtain insurance or to properly file a certificate of insurance, the employee has two options: she may either file a workers' compensation action or file an action for common law remedies, to which she may attach a contract claim for wrongful discharge. Failure to comply with the act does not allow the employee to file both a workers' compensation action and a wrongful discharge action. Shores v. Charter Servs., Inc., 1987-NMSC-109, 106 N.M. 569, 746 P.2d 1101.

Where an employer did not substantially comply with the filing provisions of the Workers' Compensation Act, the exclusive remedy provisions of this section and Sections 52-1-6 and 52-1-8 NMSA 1978 did not apply to bar a wrongful death action against the employer. Peterson v. Wells Fargo Armored Servs. Corp., 2000-NMCA-043, 129 N.M. 158, 3 P.3d 135, cert. denied, 129 N.M. 207, 4 P.3d 35.

Delay in filing does not remove limitation on employer's liability. — A delay in filing, pursuant to Section 52-1-4 NMSA 1978 does not necessarily remove the limitations on the employer's liability found in Sections 52-1-6 and 52-1-8 NMSA 1978 and this section. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841.

A delay in filing pursuant to 52-1-4 NMSA 1978 does not remove the limitation on the employer's liability because the statutory purpose is met when the employer obtains compensation protection for his workmen. Quintana v. Nolan Bros., 1969-NMCA-083, 80 N.M. 589, 458 P.2d 841.

Employer interpretation permitting action against co-employees. — The highway commission insurance requirements evidence a desire to provide compensation for bodily injury and property damage; the contractor's employees are compensated by workmen's [workers'] compensation, members of the public in general are compensated by the public liability insurance, but the policy of the commission is only to provide this compensation and not to indemnify employees under Hockett v. Chapman, 1961-NMSC-163, 69 N.M. 324, 366 P.2d 850, interpretation of the Workmen's [Workers'] Compensation Law permitting actions against co-employees. Chavez v. Pino, 1974-NMCA-071, 86 N.M. 464, 525 P.2d 391.

Temporary helpers' coverage purchased at employer's expense. — Employer's indirect payments to a temporary help service were sufficient to invoke the protections of the exclusive remedy provisions against a temporary worker who sued the employer, where insurance coverage had been purchased by the service for the worker at the employer's expense. Garcia v. Smith Pipe & Steel Co., 1988-NMCA-078, 107 N.M. 808, 765 P.2d 1176, cert. denied, 107 N.M. 673, 763 P.2d 689.

A temporary employer was immune from a common law tort claim of a temporary employee since it met the test of special employer; it had contractually assured that the general employer would provide workers' compensation coverage, and the temporary employee had signed a contract agreeing to look to the general employer for his remedy for on-the-job injuries. Vigil v. Digital Equip. Corp., 1996-NMCA-100, 122 N.M. 417, 925 P.2d 883, cert. denied, 122 N.M. 279, 923 P.2d 1164.

III. SERVICE IN COURSE OF EMPLOYMENT.

Burden is on the claimant to establish by evidence that worker's death was proximately caused by an accident arising out of and in the course of his employment. Sw. Portland Cement Co. v. Simpson, 135 F.2d 584 (10th Cir. 1943).

Burden of proof that claimant is employee. — To obtain benefits under the Workmen's [Workers'] Compensation Act, the claimant has the burden of establishing that he is an employee. Dibble v. Garcia, 1982-NMCA-040, 98 N.M. 21, 644 P.2d 535, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Burden after claimant raises inference of course of employment. — After claimant has introduced proof of facts raising a natural and reasonable inference that accident arose out of and in the course of employee's employment and occurred when he was performing services arising out of and in the course of his employment, burden rested on the employer, it having denied those facts, to show the contrary. Sw. Portland Cement Co. v. Simpson, 135 F.2d 584 (10th Cir. 1943).

Inference by jury as to course of employment. — Where there is substantial evidence that death of employee resulted from accident and that accident occurred during his hours of work, at a place where his duties required him to be, or where he might properly have been in the performance of such duties, the triers of the issues of fact may reasonably conclude therefrom, as a natural inference, that the accident arose out of and in the course of the employment. Sw. Portland Cement Co. v. Simpson, 135 F.2d 584 (10th Cir. 1943).

Presumption of fact as to accident in employment. — Since burden is on claimant to prove that accident arose out of and in the course of employment, either by direct evidence or by evidence from which these facts may be legitimately inferred, the presumption is not a legal presumption, but one of fact, that is, a natural inference drawn from proven facts. Sw. Portland Cement Co. v. Simpson, 135 F.2d 584 (10th Cir. 1943).

"Arising out of " construed. — For an injury to "arise out of" the employment, there must be showing that the injury was caused by a risk to which the worker was subjected by his employment; the employment must contribute something to the hazard of the injury. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231; Velkovitz v. Penasco Indep. Sch. Dist., 1981-NMSC-075, 96 N.M. 577, 633 P.2d 685; Losinski v. Corcoran, Barkoff & Stagnone, P.A., 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.

An injury arises out of the employment when it is caused by a risk to which the worker is subjected in the employment. Sena v. Cont'l Cas. Co., 1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794.

A miner's injury, which was sustained after returning to a recently blasted work area when a large rock fell on his foot, arose out of his employment, despite the fact that the miner failed to use a scaling bar, as required by state and federal regulation, prior to his return to secure the work area. This determination was supported by the introduction of evidence that rock falls are one of the leading causes of mining accidents and occur even after the barring down of the blasted area. Garcia v. Homestake Mining Co., 1992-NMCA-018, 113 N.M. 508, 828 P.2d 420, cert. denied, 113 N.M. 488, 827 P.2d 1302.

The principles "arising out of" and "in the course of employment" within the meaning of the Workmen's [Workers'] Compensation Act must coexist at the time of the injury in order that an award be sustained. These terms are not synonymous: the former relates to the cause of the injury and the latter refers to the time, place and circumstances under which the injury occurred. The injury must be reasonably incident to the employment or one flowing therefrom as a natural consequence. Walker v. Woldridge, 1954-NMSC-027, 58 N.M. 183, 268 P.2d 579; Wilson v. Richardson Ford Sales, Inc., 1981-NMSC-123, 97 N.M. 226, 638 P.2d 1071.

It is not enough that the injury arose in the course of employment. For an injury to be compensable within the Workmen's [Workers'] Compensation Act it must "arise out of" and in the course of employment and not be willfully suffered or intentionally inflicted. Walker v. Woldridge, 1954-NMSC-027, 58 N.M. 183, 268 P.2d 579.

Whether an injury occurs in the course of employment relates to the time, place and circumstances under which the accident takes place. Sena v. Continental Cas. Co., 1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794.

Requirements for "arising out of" and "in the course of employment". — "Arising out of" and "in the course of employment" are two distinct requirements; in order for a claimant to be entitled to compensation, both of the requirements for "arising out of" and "in the course of employment" must be met. In determining whether an injury arose out of the worker's employment, the cause of the accident must be determined; injuries "arising out of" employment typically include those occurring during acts the worker was specifically instructed to perform by the employer and acts incidental to the worker's assigned duties. "In the course of employment" relates to the time, place, and circumstances under which the accident takes place; injuries occurring during the "course of employment" take place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it. Begay v. Consumer Direct Personal Care, 2015-NMCA-025, cert. denied, 2015-NMCERT-002.

Where worker's employment involved providing personal care services, through Medicaid, to her mentally disabled son, and where worker was abruptly attacked by her son causing injury to worker's arm, worker's employment duties overlapped significantly with the services she provided as a mother or natural support; evidence showed that worker was providing services that could have been provided in either of her two roles, but the fact that the injury occurred outside her scheduled work hours, the evidence was sufficient to support the worker's compensation judge's conclusion that worker's injury did not "arise from" or occur "in the course of employment." Begay v. Consumer Direct Personal Care, 2015-NMCA-025, cert. denied, 2015-NMCERT-002.

Off-duty police officers responding to emergency circumstances. — Emergency actions taken by off-duty police officers in response to emergency circumstances constitute actions arising out of and in the course of their employment as police officers if on-duty police officers would take the emergency actions in response to the emergency circumstances in the course of their employment. Schultz v. Pojoaque Tribal Police Dep't, 2014-NMCA-019.

Where a police officer, who was off-duty and voluntarily chaperoning a church youth group trip to a recreational area on the Rio Grande River, was drowned while rescuing a child who was under the officer's supervision and who had fallen into the river; the officer was not on-call or in uniform; and the incident occurred outside the officer's jurisdiction, the officer's death arose out of and in the course of the officer's employment because there was a sufficient nexus between the officer's actions in rescuing the child and the duties of the officer's employment as a police officer. Schultz v. Pojoaque Tribal Police Dep't, 2014-NMCA-019.

Service performed as material, not primary purpose of trip. — Where claimants were members of a drilling crew, and, at the request of the tool pusher, were cooperating in pushing the tool pusher's car down the road, an accident occurred, injuring some of the employees and it was held that certain of the employees were "literally in the course of their employment," it is the service to be performed for the employer that is material, not what may be the dominant or primary purpose of the trip. Brown v. Arapahoe Drilling Co., 1962-NMSC-051, 70 N.M. 99, 370 P.2d 816.

Going to and from work not in course of employment. — A case of injury arising out of and in the course of employment was not established by the facts present in this case, where the plaintiff in going to and from work was not in the performance of service arising out of or in the course of his employment, his duties in behalf of the employer had terminated for the day, he was not being compensated for his time spent en route between the place of work and his home, the accident did not occur on the employer's premises, nor did plaintiff's duties require his presence at the place where the accident occurred, and the risk which caused the accident was one common to the traveling public and was not created by his employment. Rinehart v. Mossman-Gladden, Inc., 1967-NMSC-022, 77 N.M. 470, 423 P.2d 991.

Compensation is not allowed if an injury occurs while the workman [worker] is on his way to assume the duties of his employment or after leaving such duties. Romero v. S.S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, cert. denied, 95 N.M. 593, 624 P.2d 535, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

Although courts have consistently resolved reasonable doubts in favor of the employee in many borderline areas, they have not extended this liberal treatment to the on-premises injury occurring before the work-day commences or as it ends. Gonzales v. N.M. State Hwy. Dep't, 1981-NMCA-077, 97 N.M. 98, 637 P.2d 48, cert. quashed, 97 N.M. 621, 642 P.2d 607, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

As a general rule injuries sustained by an employee while on the way to assume the duties of employment or after leaving such duties are not compensable. Rinehart v. Mossman-Gladden, Inc., 1967-NMSC-022, 77 N.M. 470, 423 P.2d 991.

Going to work where accident caused by negligent on-duty coworker. — Worker's compensation was the exclusive remedy for a worker who was injured on his way to work in a traffic accident that occurred half an hour before his shift began, two miles away from his employer's premises, as a direct result of an on-duty coworker's negligent driving of a vehicle owned by the common employer. Espinosa v. Albuquerque Publ'g Co., 1997-NMCA-072, 123 N.M. 605, 943 P.2d 1058.

The basic principle or premise underlying "exceptions" to going and coming rule and the clue to their proper limits is found in the principle that the injury is compensable only where the journey is an inherent part of the service for which the employee is compensated or where the travel itself is a substantial part of the service performed. Rinehart v. Mossman-Gladden, Inc., 1967-NMSC-022, 77 N.M. 470, 423 P.2d 991.

Intentional acts by employer. — Injury arising out of sexual harassment was not barred by the exclusivity provisions of this section, where there was evidence that the employer acted intentionally in subjecting employee to the harassment risk. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.

When assault on employee deemed in course of employment. — Where plaintiff, although not required to live on the employer's premises, had no reasonable alternative and was required while living there to help fight fires and participate in search and rescue, plaintiff's injuries resulting from an assault and rape in her residence by one of the mentally retarded students at the employer's facility arose out of and in the course of her employment. Arnold v. State, 1980-NMCA-030, 94 N.M. 278, 609 P.2d 725, cert. denied, 94 N.M. 674, 615 P.2d 991.

Injury caused by sexual harassment is not an accident arising out of and in the course of employment. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.

Question of law where facts not disputed. — Where the facts are not in dispute, it is a question of law whether an accident arises out of and in the course of employment. Losinski v. Corcoran, Barkoff & Stagnone, P.A., 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.

Review of conclusion that accident arose out of employment. — The conclusion of law that the accident arose out of the course of employment is freely reviewable. Losinski v. Corcoran, Barkoff & Stagnone, P.A., 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.

Claimant's testimony as only evidence supporting trial court's finding remains undisturbed on appeal. — Where claimant's testimony is the only evidence which has a bearing on the cause of the accident and if her statement will support the trial court's finding that her injury arose out of and in the course of her employment, the finding shall not be disturbed on appeal. Romero v. S.S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, cert. denied, 95 N.M. 593, 624 P.2d 535, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

Reasonable inference that employee met accident on the job permissible. — If there are any facts and circumstances sufficient to raise a reasonable inference that the 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.

Violation of order forecloses compensability. — If an order or warning is one limiting the scope or sphere of work which claimant is authorized to do, then a violation forecloses compensability for the injury so sustained. Walker v. Woldridge, 1954-NMSC-027, 58 N.M. 183, 268 P.2d 579.

Exclusive remedy. — Generally, the Workers' Compensation Act makes workers' compensation benefits the worker's exclusive remedy for all accidental injuries. Armenta v. A.S. Horner, Inc., 2015-NMCA-092, cert. granted, 2015-NMCERT-008.

Where plaintiff, the personal representative of decedent worker, brought a negligent entrustment suit against defendant employer, and employer argued that plaintiff's claims were barred because the Workers' Compensation Act provides the exclusive remedy for plaintiff's claims, the district court erred in granting employer's motion for summary judgment where the evidence established that 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, that 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 Workers' Compensation Act did not apply to plaintiff's claim, because the accident did not arise out of and in the course of worker's employment when 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.

Business or personal trip. — It is not necessary that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if the trip would ultimately have had to be made, and if the employer got this necessary item of travel accomplished by combining it with this employee's personal trip, it is accurate to say that it was a concurrent cause of the trip, rather than an incidental appendage or afterthought. Brown v. Arapahoe Drilling Co., 1962-NMSC-051, 70 N.M. 99, 370 P.2d 816.

Accident held to arise out of course of employment. — Where a teacher is injured while skiing during a break in her supervision of students on a school-sponsored ski trip and the school authorities knew of and assented to the practice of sponsors skiing for their personal enjoyment on school ski trips, the injuries were caused by an accident which arose out of and in the course of her employment. Turley v. State, 1981-NMSC-081, 96 N.M. 579, 633 P.2d 687, overruled on other grounds by United States Brewers Ass'n v. Director of N.M. Dep't of ABC, 1983-NMSC-059, 100 N.M. 216, 668 P.2d 1093.

Unexplained fall was compensable. — Where worker appealed from the workers' compensation judge's (WCJ) compensation order denying him workers' compensation for an injury resulting from a trip-and-fall that occurred on the job, the WCJ erred in concluding that worker's accident did not arise out of and in the course of his employment, because worker's injury was the result of an unexplained fall, which constitutes a neutral risk, and gives rise to a rebuttable presumption that worker's injury arose out of his employment. Moreover, the facts demonstrated that Worker's fall and injury occurred while he was at work during the period of his employment, at a place where he was required to be, and while he was reasonably fulfilling the duties of his employment. Griego v. Jones Lang LaSalle, 2019-NMCA-007, cert. denied.

Disease contracted from pigeons roosting in warehouse arose out of course of employment. — Where worker was injured and died from psittacosis which worker contracted from exposure to pigeons and pigeon feces in the warehouse where worker was employed as a laborer, while worker was performing the duties that were assigned to worker by the employer, during work hours, worker's injury and death arose out of and in the course of worker's employment and fell within the exclusivity provisions of the Workers' Compensation Act, Section 52-1-1 NMSA 1978 et seq. Castillo v. Caprock Pipe & Supply, Inc., 2012-NMCA-085, 285 P.3d 1072, cert. denied, 2012-NMCERT-007.

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.

Determination of employee status. — Under New Mexico law a multi-factor analysis must be used to determine the level and nature of control exerted by a putative statutory employer over persons and entities doing work for it, to determine whether the relationship is best characterized as one of independent contractor or employer and employee. Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, cert. denied, 126 N.M. 532, 972 P.2d 351.

Employee on loan to another as special employee. — At the time of his injury employee was engaged on work for the benefit and advantage of another corporation and was on loan from his employer to the other corporation as a "special" employee. Hence, his injury did not arise out of, or in the course of, his employment by his employer, and he was not when he was injured working for the purpose of his employer's trade or business. Barber v. Los Alamos Beverage Corp., 1959-NMSC-007, 65 N.M. 323, 337 P.2d 394.

Employee of contractor though provided by another company. — An employee who was employed by another company which provided manpower to a contractor on a project and was subject to orders on the job from the contractor's supervisory personnel was an employee of the contractor and entitled to workmen's [workers'] compensation for injuries on the job and may not sue the contractors in tort on negligence. Shipman v. Macco Corp., 1964-NMSC-091, 74 N.M. 174, 392 P.2d 9.

Specific event necessary. — Claimant, who alleged that as a result of job harassment, which caused work stress, her husband shot himself in the head, could not recover compensation where no psychologically traumatic event had been alleged. Holford v. Regents of Univ. of Cal., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, cert. denied, 110 N.M. 330, 795 P.2d 1022.

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.

Act of reaching employee at home by telephone is not a "circumstance" of employment. 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.

IV. ACCIDENT PROXIMATE CAUSE OF INJURY.

Under this section it is not necessary that injury should result momentarily to be accidental. It may be the result of hours, even a day, or longer, depending upon the facts of the case. Salazar v. County of Bernalillo, 1962-NMSC-014, 69 N.M. 464, 368 P.2d 141.

Exclusivity. — The words "accidentally sustained," as used in Section 52-1-9 NMSA 1978, refer to injury or death arising from an unintended or unexpected event. An employee seeking to impose liability upon an employer outside the ambit of Section 52-1-9 NMSA 1978, must plead and prove an actual intent to injure the employee on the part of the employer. Johnson Controls World Servs. v. Barnes, 1993-NMCA-004, 115 N.M. 116, 847 P.2d 761, cert. denied 115 N.M. 79, 847 P.2d 313, overruled by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.

There must still be causal relationship between accident and injury complained of. But such relationship need not be shown by uncontradicted, indisputable medical evidence. White v. Valley Land Co., 1957-NMSC-100, 64 N.M. 9, 322 P.2d 707, overruled on other grounds by Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.

Relationship must be shown between accident relied on and injury suffered to justify an award of workmen's [workers'] compensation, as the award cannot rest on mere speculation. Henderson v. Texas-N.M. Pipe Line Co., 1942-NMSC-060, 46 N.M. 458, 131 P.2d 269.

It is not necessary that injury should result momentarily, to be accidental; it may be the result of hours, even a day or longer, depending upon the facts of the case. 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).

Disabling event may occur months or years after work-related accident, and then become compensable; or it may be the product of a new "accident" resulting from the bodily malfunction ultimately induced by the original injury. 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.

Disability must be "natural and direct" result of accident. — The requirement in Section 52-1-28 A(3) NMSA 1978 that the disability be a "natural and direct result" of the accident supplements the proximate-cause requirement of Subsection C of this section 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 stemming from severe trauma induced during a worker's repair of his transmission, that can be characterized as stemming from an independent, intervening cause. Aragon v. State Corr. Dep't, 1991-NMCA-109, 113 N.M. 176, 824 P.2d 316, cert. denied, 113 N.M. 23, 821 P.2d 1060.

Where act has no reasonable relation to employment. — An employee must be held to stand the risk of injury received by him which proximately results from an act of his own which has no reasonable relation to the employment. Walker v. Woldridge, 1954-NMSC-027, 58 N.M. 183, 268 P.2d 579.

Not within province to assume causal connection. — Where more than three months elapse between claimant's second heart attack and his demise, and no medical testimony exists as to a causal connection between the heart attack and the death, it is not within the province of the court to assume such a causal connection, nor may the court permit the jury so to do. Alspaugh v. Mountain States Mut. Cas. Co., 1959-NMSC-057, 66 N.M. 126, 343 P.2d 697.

Burden on claimant to show causal connection. — When death occurs some three months after the second heart attack of the decedent, the burden of proof is on the claimant to show that death resulted from the accidental injury, and it is not unreasonable to require the claimant to produce proof of the causal connection, if such connection existed. Alspaugh v. Mountain States Mut. Cas. Co., 1959-NMSC-057, 66 N.M. 126, 343 P.2d 697.

Error for case to go to jury where burden fails. — Error exists on the part of the trial judge in allowing a case to go to the jury, when death occurs some three months after the second heart attack of decedent, and claimant fails to sustain the burden of proving that the evidence reasonably gives rise to a circumstantial inference of the requisite causal relation. Alspaugh v. Mountain States Mut. Cas. Co., 1959-NMSC-057, 66 N.M. 126, 343 P.2d 697.

Jury determination whether causal relation exists. — When the evidence indicates that there is an injury and shortly thereafter the injured person dies of an apparently related cause, such evidence is permitted to go to the jury for a determination by it as to whether the required causal relation exists. This is true in spite of the lack of medical evidence, convincing of and in itself, that the connection exists. White v. Valley Land Co., 1957-NMSC-100, 64 N.M. 9, 322 P.2d 707, overruled on other grounds by Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.

Where no positive statement could be made as to the causal connection by the medical witnesses, the court was correct in sending the case to the jury on the basis of the medical testimony, such as it was, and the lay testimony as to the events surrounding the accident both before and after it happened. It was for jury determination as to whether there was a natural sequence of events which indicates a causal connection. Whether there is enough evidence to have the jury make this determination in the first instance is a question for the court to determine in the face of a motion to dismiss. Where it appears that there was such evidence the supreme court must sustain the lower court in leaving the determination of fact to the jury. White v. Valley Land Co., 1957-NMSC-100, 64 N.M. 9, 322 P.2d 707, overruled on other grounds by Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.

Special interrogatory should cover both requisites to right to compensation set forth in Section 52-1-9 NMSA 1978: whether employee was performing services arising out of and in course of his employment at time of the accident and whether the employee's death was proximately caused by an accident arising out of and in course of his employment. Sw. Portland Cement Co. v. Simpson, 135 F.2d 584 (10th Cir. 1943).

Accidental injury or accident is an unlooked for mishap, or untoward event which is not expected or designed. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.

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. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.

It is not essential that injury occur momentarily to be "accidental" within meaning of the Workmen's [Workers'] Compensation Act and an unintentional result of an intended act by the person injured comes within the definition of an accident. Henderson v. Texas-N.M. Pipe Line Co., 1942-NMSC-060, 46 N.M. 458, 131 P.2d 269.

Cause of and evidence of accident need not be simultaneous. — While there must be a time when it can be said with certainty that a compensable accidental injury has been inflicted, the cause and the coming into existence of the evidence characterizing it as a compensable one need not be simultaneous events. Webb v. N.M. Publ'g Co., 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.

An accidental injury may be produced gradually and progressively and where a printer used a soap furnished by his employer to which he was unknowingly allergic, completely disabling him from performing any work, the resulting injury was a compensable accident. Webb v. N.M. Publ'g Co., 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.

Gradual hearing loss. — Worker's gradual, noise-induced hearing loss was an accidental injury compensable under the Workers' Compensation Act. 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.

Disease by accident. — Findings of the trial court that "there was no accident on that date" and "any disability suffered by the plaintiff was due to a disease caused by specific germs, not an industrial accident," were conclusions of law and call for the construction of the meaning of the word "accident" as used in the Workmen's [Workers'] Compensation Act; although pneumonia is a germ disease and any disability plaintiff suffered was due to such disease, it does not follow that his injury was not "by accident," if the proximate cause of the disease was an accident. Stevenson v. Lee Moor Contracting Co., 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.

Uncertainty as to time when injury occurs. — While usually the event and circumstances of an accidental injury can be definitely ascertained, there are exceptional cases in which injuries are unquestionably accidental although the precise time of their beginning is uncertain; if from the evidence, though the time is not definitely fixed, it can be consistently said that there has been an accidental injury according to the common usage of that phrase, it is sufficient. Webb v. N.M. Publ'g Co., 1943-NMSC-032, 47 N.M. 279, 141 P.2d 333.

The "by accident" requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant's duties. Accordingly, if the strain of claimant's usual exertions causes collapse from back weakness, the injury is held accidental. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418.

Employer's liability arose at time of accident, not injury. — In case where accident occurred under one insurance company, and injury occurred three years later under another, the employer's liability arose at the time of the accident and not the injury. The second insurance company was thus dismissed from the suit over a strong dissent. Ponce v. Hanes L'eggs Prods., Inc., 1977-NMCA-114, 91 N.M. 112, 570 P.2d 943.

No causal connection with insurance company at time of injury. — Where the accident was under one insurance company and the injury was three years later under a second insurance company, to hold the second company liable it was necessary to show a causal connection between the work done during the period of the new policy and the injury or disability, which in this case was not done. Ponce v. Hanes L'eggs Prods., Inc., 1977-NMCA-114, 91 N.M. 112, 570 P.2d 943.

False representation as causal connection with injury. — Where plaintiff knowingly and willfully made false representations as to his physical condition and his employer relied upon the false representations, a substantial factor in hiring plaintiff and a causal connection existed between the false representations and the injury claimed, plaintiff was not entitled to workmen's [workers'] compensation benefits and the complaint should be dismissed with prejudice. Martinez v. Driver Mechenbier, Inc., 1977-NMCA-031, 90 N.M. 282, 562 P.2d 843.

Sufficient basis for conclusion that disability resulted from accident. — Despite conflicts between the experts, the testimony of claimant's doctor revealed a sufficient basis for the conclusion that claimant's disability resulted from the accident, and that surgery was necessary, where he testified that he received from the claimant a history of the accident and a history of pain since the accident, that the conservative therapy employed by other physicians for over one year had not improved the claimant's condition, that in surgery abnormal intervertebral disc tissue was removed from the claimant and that after surgery the claimant's prognosis had improved considerably. Provencio v. New Jersey Zinc Co., 1974-NMCA-048, 86 N.M. 538, 525 P.2d 898, cert. denied, 86 N.M. 528, 525 P.2d 888.

Self-inflicted injuries not compensable. — Absent evidence of mental derangement and causation, self-inflicted injuries are not compensable. Holford v. Regents of Univ. of Cal., 1990-NMCA-066, 110 N.M. 366, 796 P.2d 259, cert. denied, 110 N.M. 330, 795 P.2d 1022.

Aggravation of cancer or other disease may be inferable despite lack of medical evidence establishing indisputable causal connection between trauma and spread of preexisting cancer whenever the sequence of events is so strong as to establish a causal connection. White v. Valley Land Co., 1957-NMSC-100, 64 N.M. 9, 322 P.2d 707, overruled on other grounds by Mascarenas v. Kennedy, 1964-NMSC-179, 74 N.M. 665, 397 P.2d 312.

Where no disability and ulcer not caused by accident, no compensable claim. — Finding by the trial court that the cut suffered to claimant's hand did not result in a disability and that his perforated ulcer was not caused by an accidental injury sustained by claimant, arising out of and in the course of his employment precluded a compensable claim under the act. Dodson v. Eidal Mfg. Co., 1963-NMSC-052, 72 N.M. 6, 380 P.2d 16.

Strain or exertion in employment causing heart attack compensable. — Even though the decedent may have been suffering from a heart condition which might have eventually caused his death, the claimant could nevertheless recover where the physical strain or exertion in the course of his employment was the proximate and immediate cause of the decedent's death; where the duties of the employment called for a quality and quantity of exertion which actually is the immediate precipitating factor in the death of a workman [worker], by a heart attack, it is compensable. Hall-Stewart Drilling Co. v. Tomlin, 248 F.2d 953 (10th Cir. 1957).

A heart attack which results from exertion expended by a workman [worker] in performing his usual and ordinary duties, under usual and ordinary circumstances of his work, may be made the subject of a workmen's [workers'] compensation award. Sanchez v. Board of Cnty. Comm'rs, 1957-NMSC-051, 63 N.M. 85, 313 P.2d 1055.

Malfunction of body as accidental injury. — Based upon the reasoning of these cases, 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. Ortiz v. Ortiz & Torres Dri-Wall Co., 1972-NMCA-005, 83 N.M. 452, 493 P.2d 418; 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; 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).

Purely psychological condition compensable. — Even a purely psychological condition, if it results from a work injury, is compensable under the Act. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231.

There need be no permanent physical alteration of body tissues in order to qualify for permanent disability. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231.

Psychological disability caused by stress arising out of and in the course of employment is compensable, assuming the existence of an actual job condition which causes actual, not 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).

Psychological injuries arising out of sexual harassment. — Emotional distress occurring over a period of time following incidents of sexual harassment are not compensable under the Worker's Compensation Act, since only "primary mental impairment" or "secondary mental impairment" are compensable under the WCA, not psychological injuries that occur over time. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, 127 N.M. 47, 976 P.2d 999.

Psychogenic pain disorder compensable. — Psychogenic pain disorder, insofar as it is a psychological disability, is compensable so long as it is proximately caused by an accident arising out of and in the course of employment. Gutierrez v. Amity Leather Prods. Co., 1988-NMCA-006, 107 N.M. 26, 751 P.2d 710.

Recovery not barred where suicide resulted from mental disability produced by compensable injury. — The statutory restrictions barring recovery where an injury is self-inflicted do not preclude recovery were the original work-related injury sustained by the workman [worker] was accidental and otherwise compensable, and the injury produced a mental disability which rendered the subsequent act of suicide of the workman [worker] non-purposeful. Schell v. Buell ECD Co., 1983-NMCA-093, 102 N.M. 44, 690 P.2d 1038, cert. denied, 102 N.M. 7, 690 P.2d 450 (1984).

Allergies as compensable injury. — If a constant exposure to cigarette smoke in a work environment triggers allergies which in turn cause an employee to collapse, this is a compensable accidental injury under the Act. Schober v. Mountain Bell Tel., 1978-NMCA-115, 93 N.M. 337, 600 P.2d 283, cert. denied, 92 N.M. 621, 593 P.2d 62 (1979); Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231.

Stress of labor aggravating preexisting infirmity compensable. — 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.

An employee who has a preexisting physical weakness or disease may suffer a compensable injury if the employment contribution can be found either in placing the employee in a position which aggravates the danger due to the idiopathic condition, or where the condition is aggravated by strain or trauma due to the employment requirements. Schober v. Mountain Bell Tel., 1980-NMCA-113, 96 N.M. 376, 630 P.2d 1231.

Injuries resulting from employer's tolerance of dangerous condition compensable. — Where the alleged conduct of the employer is that defendant intentionally permitted a hazardous work condition to exist or that defendant intentionally tolerated a dangerous condition, injuries suffered by plaintiff as a result of that condition are accidental injuries within the meaning of the Workmen's [Workers'] Compensation Law and are not intentional injuries of the sort on which a common-law action for damages may be based. Sanford v. Presto Mfg. Co., 1979-NMCA-059, 92 N.M. 746, 594 P.2d 1202.

Hernia as compensable injury. — A workman's [worker's] right to compensation for hernia was dependent upon showing that it did not exist prior to the injury. Martin v. White Pine Lumber Co., 1930-NMSC-003, 34 N.M. 483, 284 P. 115.

Pneumonia as compensable. — Truck driver was entitled to compensation under this act where employer supplied him with a defective truck which discharged an excessive amount of smoke and gases, and he developed pneumonia as the result of such obnoxious fumes. Stevenson v. Lee Moor Contracting Co., 1941-NMSC-033, 45 N.M. 354, 115 P.2d 342.

Employer liable where fall due to preexisting condition. — Where a workman [worker], in the ordinary course of his work, slumps or faints from a heart weakness, while on a platform, and falls therefrom sustaining injuries resulting in death, the majority of courts, American and English, hold the employer liable if the injury was due to the fall, even though the fall was caused by a preexisting idiopathic condition. Christensen v. Dysart, 1938-NMSC-008, 42 N.M. 107, 76 P.2d 1.

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Torts," see 11 N.M.L. Rev. 217 (1981).

For annual survey of New Mexico law relating to workmen's compensation, see 13 N.M.L. Rev. 495 (1983).

For article, "Survey on New Mexico Law, 1982-83: Workmen's Compensation," see 14 N.M.L. Rev. 211 (1984).

For comment, "Comparative Fault Principles Do Not Affect Negligent Employer's Right to Full Reimbursement of Compensation Benefits Out of Worker's Partial Third-Party Recovery - Taylor v. Delgarno Transp., Inc.," see 14 N.M.L. Rev. 437 (1984).

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

For annual survey of New Mexico insurance law, 19 N.M.L. Rev. 717 (1990).

For note, "The District Court Should Make the Initial Determination of Jurisdiction in Workers' Compensation Cases Involving Intentional Tort Claims - Eldridge v. Circle K Corp.," see 28 N.M.L. Rev. 665 (1998).

For note, "Workers' Compensation: Exclusivity, Common Law Remedies, and the Reconsideration of the Actual Intent Test - Delgado v. Phelps Dodge Chino, Inc.," see 32 N.M.L. Rev. 549 (2002).

For note, "Trends in New Mexico Law 1994-95: Workers' Compensation Law New Mexico Clarifies the Meaning of a Special Employer as Distinct from a Statutory Employer: Rivera v. Sagebrush Sales, Inc.," see 26 N.M. L. Rev. 655 (1996).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation §§ 31, 54.

Constitutionality of Workmen's Compensation Act giving choice of remedies exclusively to either employer or employee, 6 A.L.R. 1562.

Federal Employers' Liability Law, bringing action under, as bar to subsequent action under state act, and vice versa, 12 A.L.R. 709, 36 A.L.R. 917, 89 A.L.R. 693.

Serious and willful misconduct of employer warranting increased compensation, or action at law, 16 A.L.R. 620, 58 A.L.R. 1379, 68 A.L.R. 301.

Rights and remedies where employee was injured by third person's negligence, 19 A.L.R. 766, 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, 106 A.L.R. 1040.

Submission of rejected claim under Workmen's Compensation Act as affecting independent action for death or injury, 36 A.L.R. 1293.

Applicability and effect of workmen's compensation acts in case of injuries to minors, 49 A.L.R. 1435, 60 A.L.R. 847, 83 A.L.R. 416, 142 A.L.R. 1018.

Application for and acceptance of benefits under Workmen's Compensation Act as affecting right of action against employer independently of that act, 50 A.L.R. 223.

Common-law remedies, effect of provisions of Workmen's Compensation Act in relation to employees of independent contractors or subcontractors, 58 A.L.R. 894, 105 A.L.R. 580, 151 A.L.R. 1354, 180 A.L.R. 1214.

Workmen's Compensation Act, as providing exclusive remedy for injury by assault, 72 A.L.R. 110, 112 A.L.R. 1258.

Bringing action against employer as an election or estoppel precluding claim under Workmen's Compensation Act, 94 A.L.R. 1430.

Statutory provisions regarding action against employer who does not assent to compensation act as affirmative support, by employee, for right of action not otherwise existing, 97 A.L.R. 1297.

Third party, claim or action against one as, as precluding action or claim against him as employer or vice versa, 98 A.L.R. 416.

Federal Safety Appliance Act, state Workmen's Compensation Act as precluding action based on noncompliance with, to recover for death or injury to railroad employee while engaged in intrastate commerce, 98 A.L.R. 511, 104 A.L.R. 839.

Workmen's Compensation Act as exclusive of remedy by action against employer for injury or disease not compensable under act, 100 A.L.R. 519, 121 A.L.R. 1143.

Compensation act as precluding common-law action by husband or wife of injured employee, 104 A.L.R. 346.

Employee's right of election after injury or disability as between benefits of compensation act and action at law against employer, 117 A.L.R. 515.

Right as between employer primarily responsible under Workmen's Compensation Act and employer secondarily liable under that act where injury was due to latter's negligence, 117 A.L.R. 571.

Common-law remedy against general employer by employee of independent contractor or against independent contractor by employee of subcontractor, as affected by specific provisions of Workmen's Compensation Act relating to such employees, 151 A.L.R. 1359, 166 A.L.R. 813.

Malpractice action against physician, right of employee who does not receive award under Workmen's Compensation Act to maintain, 154 A.L.R. 315.

Remedy as between subcontractor and principal contractor in respect to workmen's compensation paid by one to employee injured through other's negligence where injured employee had no remedy apart from the act, 166 A.L.R. 1221.

Application for, or award, denial or acceptance of compensation under state Workmen's Compensation Act as precluding action under Federal Employer's Liability Act by one engaged in interstate commerce within that act, 6 A.L.R.2d 581.

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

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

Malpractice suit against injured employee's attending physician, right to maintain notwithstanding receipt of workmen's compensation award, 28 A.L.R.3d 1066.

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.

Receipt of public relief or gratuity as affecting recovery in personal injury action, 77 A.L.R.3d 366.

What conduct is willful, intentional, or deliberate within Workmen's Compensation Act provision authorizing tort action for such conduct, 96 A.L.R.3d 1064.

Modern status of effect of state Workmen's Compensation Act on right of third-person tortfeasor to contribution or indemnity from employer of injured or killed workman, 100 A.L.R.3d 350.

Employer's tort liability to worker for concealing workplace hazard or nature or extent of injury, 9 A.L.R.4th 778.

Workmen's Compensation Act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer, 9 A.L.R.4th 873.

Cancer as compensable under workers' compensation acts, 19 A.L.R.4th 639.

Workers' Compensation Act as precluding tort action for injury to or death of employee's unborn child, 55 A.L.R.4th 792.

Willful, wanton, or reckless conduct of co-employee as ground of liability despite bar of Workers' Compensation Law, 57 A.L.R.4th 888.

"Dual capacity doctrine" as basis for employee's recovery for medical malpractice from company medical personnel, 73 A.L.R.4th 115.

What amounts to failure or refusal to submit to medical treatment sufficient to bar recovery of workers' compensation, 3 A.L.R.5th 907.

Right to workers' compensation for injuries suffered after termination of employment, 10 A.L.R.5th 245.

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.

Jurors as within coverage of workers' compensation acts, 13 A.L.R.5th 444.

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

Pre-emption by Workers' Compensation Statute of employee's remedy under state "Whistleblower" Statute, 20 A.L.R.5th 677.

Workers' compensation: Lyme disease, 22 A.L.R.5th 246.

Violation of employment rule barring claim for worker's compensation, 61 A.L.R.5th 375.

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

99 C.J.S. Workmen's Compensation §§ 130 to 265; 101 C.J.S. Workmen's Compensation §§ 917 to 1045.