Begay v. Consumer Direct Personal Care

• Decision Date: 11 December 2014
• Docket Number: No. 35,076.,33,288.,35,076.
• Citation: 344 P.3d 1083
• Parties: Irene BEGAY, Worker–Appellant, v. CONSUMER DIRECT PERSONAL CARE, and American Casualty Co., Employer/Insurer–Appellee.
• Court: Court of Appeals of New Mexico

344 P.3d 1083

Irene BEGAY, Worker–Appellant

v.CONSUMER DIRECT PERSONAL CARE, and American Casualty Co., Employer/Insurer–Appellee.

33,288.

No. 35,076.

Court of Appeals of New Mexico.

Dec. 11, 2014.

Certiorari Denied, Feb. 12, 2015,

Titus & Murphy Law Firm, Victor A. Titus, Farmington, NM, for Appellant.

Camp & Elmore, LLC, Christopher T. Elmore, Albuquerque, NM, for Appellees.

OPINION

ZAMORA, Judge.

{1} Irene Begay (Worker) filed for workers' compensation benefits alleging that she was injured while working for Consumer Direct Personal Care (Employer). The workers' compensation judge (WCJ) found that Worker's injury was not sustained during the course and scope of her employment, and did not arise out of her employment, and denied her claim. We affirm.

BACKGROUND

{2} Worker was employed as a personal care attendant for her son, a mentally disabled adult. In 2011, when Worker was injured, she was an employee under the Personal Care Option (PCO) as provided by 8.315.4 NMAC (7/1/2004, as amended through 12/30/2010) (repealed, 2/28/2014).¹ This option, generally paid for through Medicaid, allowed relatives already providing services to Medicaid consumers to receive compensation for some of their work, while also allowing consumers to have someone familiar with them to address their needs. 8.315.4.10 NMAC (12/30/2010).

{3} Worker was injured on Monday, April 4, 2011. That day she left the house with her family and son around 1:00 p.m. to run errands in Gallup, New Mexico, which is approximately a one-hour drive from her home in Standing Rock, New Mexico. In Gallup, Worker purchased art supplies for her son, took him to lunch, and then dropped him off at a movie. While her son was at the movie, Worker went to a laundromat to wash several of her son's blankets in a commercial sized washing machine. Worker also did some laundry for her mother-in-law. After finishing the laundry, Worker picked her son up from the movies. While driving home at approximately 7:00 p.m., Worker was abruptly attacked by her son, resulting in an injury to her arm.

{4} Worker filed for workers' compensation benefits. After a trial on the merits of Worker's claim, the WCJ found that on the day of her injury, Worker's timesheet verified that she had worked her scheduled hours, from 7:00 a.m. to 2:30 p.m.; Worker knew her errands would take more time than her work schedule permitted; and, pursuant to 8.315.4.9(C) NMAC (12/30/2010), Worker was free to perform services for her son, including laundry, after her scheduled work hours, acting as a mother or a “natural support” rather than an employee.

{5} The WCJ concluded that while doing laundry may have been a service Worker performed as an employee, on the day of her injury, Worker did not perform this task within her scheduled employment hours. The WCJ further concluded that Worker's afternoon activities—taking her son to the movies, going to lunch, doing laundry for her son and her mother-in-law—were not “specific” to her son or to “benefit” her Employer, but instead were part of a “family” outing that was not part of her employment. The WCJ decided that Worker's injury was not sustained in the course or scope of her employment, and did not arise out of her employment. Worker's complaint was dismissed and this appeal followed.

DISCUSSION

Standard of Review

{6} We review factual findings of WCJs under a whole record standard of review. Moya v. City of Albuquerque, 2008–NMSC–004, ¶ 6, 143 N.M. 258, 175 P.3d 926. We give deference to the fact finder where findings are supported by substantial evidence. Dewitt v. Rent–A–Ctr., Inc., 2009–NMSC–032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “Substantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency's decision[.]” Id. We will not “reweigh the evidence [or] replace the fact finder's conclusions with our own.” Id.

{7} To the extent that this analysis involves interpretation of 8.315.4 NMAC (12/30/2010), our review is de novo. See Quynh Truong v. Allstate Ins. Co., 2010–NMSC–009, ¶ 24, 147 N.M. 583, 227 P.3d 73 (“[I]nterpretation of an administrative regulation is a question of law that we review de novo.” (internal quotation marks and citation omitted)).

Worker's Employment Under the Human Services Department Regulations

{8} At the time Worker was injured, her employment was defined and regulated by the Human Services Department's (HSD) administrative regulations. See 8.315.4.1 NMAC (12/30/2010). Pursuant to these regulations, Medicaid consumers who 5 required assistance with activities of daily living would qualify to receive PCO services. 8.315.4.9 NMAC (12/30/2010). Managed Care Organizations (MCOs) worked with PCO service providers, such as Employer, to coordinate services for eligible Medicaid consumers. Id. MCOs assessed consumers' individual needs to determine the amount and type of PCO services that would be approved for payment through Medicaid. Id.

{9} PCO services were meant to supplement services that consumers already received from “natural supports.” 8.314.5.15 NMAC (12/30/2010). In other words, Medicaid would pay for services that a consumer needed and was not already receiving from friends, family, and other members of the consumer's community on a consistent basis. Id. PCO consumers could hire a personal care attendant who is a member of their household, however, Medicaid did not cover twenty-four hour a day care or services that the personal care attendant routinely provided as part of the household division of chores, unless those services were specific to the consumer. Id.

{10} Based on the MCO's assessment of the consumer's needs and the natural supports in place, the PCO service provider and the consumer developed an Individual Plan of Care (IPoC). 8.314.5.20 NMAC (12/30/2010). The consumer's IPoC outlined the services approved for payment through Medicaid as well as the personal care attendant's work schedule. Id. Unless otherwise specified, approved PCO services should have been provided in the consumer's residence, and were to be provided during the hours specified in the IPoC. 8.315.4.15(A) NMAC (12/30/2010).

{11} The IPoC developed for Worker's son authorized forty-five hours of services per week. The plan provided for daily assistance with meal preparation, eating, cognitive tasks, hygiene, grooming, bathing, and mobility. Three days a week, Worker's son could receive one hour of “household services” which included house cleaning, washing dishes and laundry, as well as one hour of “support services,” which included assistance with shopping, errands, and transportation. Worker's scheduled hours were: Mondays, Tuesdays, and Wednesdays from 7:00 a.m. to 2:30 p.m.; Thursdays from 7:00 a.m. to 1:00 p.m.; and Saturdays and Sundays from 7:00 a.m. to 12:30 p.m. Because Worker cared for her son continuously, the IPoC's specified tasks and schedule are what distinguished the services that she provided on the clock as an employee and those she provided off the clock as a mother and natural caregiver.

The Workers' Compensation Act

{12} Under the Workers' Compensation Act (WCA), an injured worker is entitled to workers' compensation benefits if “at the time of the accident, the employee is performing service arising out of and in the course of his employment[.]” NMSA 1978, § 52–1–9(B) (1973). “Arising out of and in the course of employment are two distinct requirements.” Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep't, 2014–NMCA–019, ¶ 8, 317 P.3d 866 (internal quotation marks and citation omitted). However, 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. Garcia v. Homestake Mining Co., 1992–NMCA–018, ¶ 6, 113 N.M. 508, 828 P.2d 420 (internal quotation marks and citation omitted).

{13} In determining whether an injury arose out of the worker's employment, we look at the cause of the accident. Id. ¶ 7; see Velkovitz v. Penasco Indep. Sch. Dist., 1981–NMSC–075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (“For an injury to arise out of employment, the injury must have been caused by a risk to which the injured person was subjected in his employment.”); Flores v. McKay Oil Corp., 2008–NMCA–123, ¶ 10, 144 N.M. 782, 192 P.3d 777 (“The term ‘arising out of’ the employment denotes a risk reasonably incident to claimant's work.” (citation omitted)). 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. Schultz, 2014–NMCA–019, ¶ 8, 317 P.3d 866 (internal quotation marks and citation omitted).

{14} The second requirement under the WCA is that the injury occurs “in the course of employment, relates to the time, place, and circumstances under which the accident takes place.” Velkovitz, 1981–NMSC–075, ¶ 2, 96 N.M. 577, 633 P.2d 685. We consider whether the injury “takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.” Chavez v. ABF Freight Sys., Inc., 2001–NMCA–039, ¶ 11, 130 N.M. 524, 27 P.3d 1011 (internal quotation marks and citation omitted). “If the worker was not reasonably involved in fulfilling the duties of his employment at the time of his injury, he was not acting within the course of his employment.” Flores, 2008–NMCA–123, ¶ 10, 144 N.M. 782, 192 P.3d 777.

{15} Due to the unique nature of Worker's employment, including the fact that her employment duties overlapped significantly with the services she provided as a mother or natural support, most of the factors traditionally considered in the “arising out of employment” and “in the course of employment” analyses do not inform our analysis here. When Worker was providing services to her son, the tasks she performed, the places she may have reasonably been, and the risks incidental to...