Benavides v. E. New Mex. Med. Ctr.
| Decision Date | 06 November 2014 |
| Docket Number | 34,128. |
| Citation | 2014 NMSC 037,338 P.3d 1265 |
| Court | New Mexico Supreme Court |
| Parties | Sara BENAVIDES, Worker–Petitioner, v. EASTERN NEW MEXICO MEDICAL CENTER and Zurich American Insurance Company, Employer/Insurer–Respondents. |
Gerald A. Hanrahan, Albuquerque, NM, for Petitioner.
Hale & Dixon, P.C., Timothy S. Hale, Albuquerque, NM, for Respondents.
{1} When a worker's injury “results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker,” the Workers' Compensation Act (the Act) provides that a worker's benefits shall be increased by 10%. NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013). In this case we determine whether a “wet floor” sign is a safety device and whether a nurse who slips on a recently mopped floor at work is entitled to a 10% increase in benefits when a “wet floor” sign was not posted near the mopped floor. We hold that a “wet floor” sign is a safety device and that the nurse's injury resulted from the negligence of the employer in failing to supply reasonable safety devices in general use. In addition, we hold that Section 52–5–1 of the Act does not violate the doctrine of separation of powers.
{2} Sara L. Benavides (Worker), a registered nurse working for Eastern New Mexico Medical Center (Employer), slipped and fell on a wet floor in the Medical Center and sustained compensable injuries in 2006. Worker seriously injured her right leg, right hip, lower back, and neck. Soon after, Worker began receiving temporary total disability benefits of $585.89 per week, the maximum rate for a 2006 injury. Worker has continued to receive benefits at this rate.
{3} In 2011, Employer filed a complaint seeking a determination of permanent partial disability benefits and maximum medical improvement. Worker filed an amended answer and counterclaim requesting, among other things, a 10% increase in benefits due to a failure to supply a safety device pursuant to Section 52–1–10(B). Worker claimed that “wet floor” signs are a safety device and because they were not posted in or around the patient's room where she fell, she was entitled to the 10% safety device penalty. Employer denied the safety device allegation and demanded strict proof which resulted in a full evidentiary hearing before the Workers' Compensation Judge (WCJ).
{4} At the hearing, only three witnesses testified: Worker; William Fladd, Employer's Director of Environmental Services; and Rose Blount, another registered nurse who worked for Employer. Mr. Fladd testified that it has been his practice to supply each housekeeping cart with two to four “wet floor” signs. He said that it is Employer's policy and procedure to place a “wet floor” sign near the entrance of the room being mopped before mopping and to remove the “wet floor” sign after the floor has dried. Mr. Fladd stated that the purpose of a “wet floor” sign is “to notify people of a potentially dangerous situation.” At trial, Mr. Fladd stated that he had disciplined employees in the past who failed to post “wet floor” signs.
{5} Ms. Blount testified that on the same day that Worker suffered her injury, she also slipped but did not fall on a wet floor when she was attending to a patient, and that no “wet floor” signs were posted in or around the room. Ms. Blount warned her patient not to get out of bed after the patient informed her that “housekeeping just mopped the floor.” Ms. Blount stated that she walked up and down the hall looking for a housekeeper, but she could not find one, nor did she see a housekeeping cart or a “wet floor” sign. Ms. Blount then asked the unit secretary to call housekeeping to request a “wet floor” sign while she watched the door to make sure that nobody was injured.
{6} Worker testified that as she entered a patient's room to administer medication, she took about three steps and “just slipped,” landing on her pubic bone and twisting her whole torso. Worker described the pain as feeling as if somebody had sliced the back of her calf with a knife and that her whole foot was throbbing. Worker remained on the floor for at least five minutes until she crawled to the sink to gather paper towels to place over the floor because she “noticed it was very wet” and she “didn't want anybody else to fall.” As Worker left the room, she noticed that there was not a “wet floor” sign outside of the patient's room and she did not see any other “wet floor” signs in the hall. Worker witnessed Ms. Blount at the nurse's station requesting that somebody post “wet floor” signs. Soon after, “wet floor” signs were posted.
{7} The WCJ entered a compensation order finding that “wet floor” signs were safety devices, and that Employer did supply “wet floor” signs but that they were not deployed as they should have been. Nevertheless, the WCJ concluded in his compensation order that “Employer provided all safety devices which were appropriate, as required by statute, or in general use,” and that increased benefits under Section 52–1–10(B) were inappropriate.
{8} Worker timely appealed. The Court of Appeals affirmed, holding that Jaramillo v. Anaconda Co., 1981–NMCA–030, 95 N.M. 728, 625 P.2d 1245, is controlling in this case. Benavides v. Eastern N.M. Med. Ctr., No. 32,450, mem. op. ¶ 4, 2013 WL 4530378 (N.M.Ct.App. Mar. 25, 2013) (non-precedential). In Jaramillo, the Court of Appeals held that the “failure to provide” language in Section 52–1–10(B) did not apply to a situation where a safety device is provided by an employer but is not properly employed by a fellow employee. Jaramillo, 1981–NMCA–030, ¶ 8, 95 N.M. 728, 625 P.2d 1245. Because this was “precisely what happened here,” the Court of Appeals denied the 10% increase in benefits. Benavides, No. 32,450, mem. op. ¶ 3.
{9} Worker appealed the following issue to this Court: “Whether an injured worker is entitled to an increase in benefits pursuant to [Section] 52–1–10(B) if an employer fails to provide a safety device at a potentially dangerous or hazardous work site.” We granted certiorari.
{10} “We review factual findings of Workers' Compensation Administration judges under a whole record standard of review”. DeWitt v. Rent–A–Center, 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, and we neither reweigh the evidence nor replace the fact finder's conclusions with our own.” Id. (internal citation omitted). We will uphold the Board's decision if we “find evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency.” Herman v. Miners' Hosp., 1991–NMSC–021, ¶ 6, 111 N.M. 550, 807 P.2d 734 (internal quotation marks and citation omitted). “[A]lthough the evidence may support inconsistent findings, we will not disturb the agency's finding if supported by substantial evidence on the record as a whole.” Id.
{11} “In reviewing a WCJ's interpretation of statutory requirements, we apply a de novo standard of review”. DeWitt, 2009–NMSC–032, ¶ 14, 146 N.M. 453, 212 P.3d 341.
“We look first to the plain meaning of the statute's words, and we construe the provisions of the Act together to produce a harmonious whole.” “After we determine the meaning of the statutes, we review the whole record to determine whether the WCJ's findings and award are supported by substantial evidence.”
Id. (citation omitted).
{12} Section 52–1–10(B) provides:
In case an injury to, or death of, a worker results from the failure of an employer to provide safety devices required by law or, in any industry in which safety devices are not prescribed by statute, if an injury to, or death of, a worker results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the worker, then the compensation otherwise payable under the Worker's Compensation Act shall be increased ten percent.
Worker and Employer both argue that the statutory language is unambiguous as to the requirement to provide safety devices. The parties differ, however, as to whether a “wet floor” sign is a safety device and what is required by the language “supply reasonable safety devices.”
{13} Worker argues that a “wet floor” sign is a safety device because its purpose is to warn of a potential danger or hazard. Employer answers that signs promote safety, which is different from an actual safety device, such as a machine guard.
{14} What is a reasonable safety device is a factual question. Martinez v. Zia Co., 1983–NMCA–063, ¶ 15, 100 N.M. 8, 664 P.2d 1021. A safety device is something which “ ‘will lessen danger or secure safety,’ as something tangible, concrete, that can be seen, touched or felt—an ‘instrumentality’—as opposed to a rule or course of conduct.” Montoya v. Kennecott Copper Corp., 1956–NMSC–062, ¶¶ 13–14, 61 N.M. 268, 299 P.2d 84. “[W]hat is or is not a safety device depends on the purpose involved.” Martinez, 1983–NMCA–063, ¶ 15, 100 N.M. 8, 664 P.2d 1021. “The term ‘safety device’ must be given a broad interpretation so as to include any practical or reasonable method of lessening or preventing a specific danger to which a workman is exposed.” Jaramillo, 1981–NMCA–030, ¶ 23, 95 N.M. 728, 625 P.2d 1245.
{15} Examples of tangible safety devices that lessen a specific danger include the following: goggles used to protect workers' eyes from flying particles, Pino v. Ozark Smelting & Mining Co., 1930–NMSC–057, ¶¶ 5, 14, 35 N.M. 87, 290 P. 409 ; guard rails on a platform to protect workers from falling, Thwaits v. Kennecott Copper Corp., Chino Mines Div., 1948–NMSC–019, ¶¶ 13, 18, 52 N.M. 107, 192 P.2d 553 ; a gas indicator to give notice of the presence of deadly gases, Apodaca v. Allison & Haney, 1953–NMSC–048, ¶¶...
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Benavides v. E. New Mex. Med. Ctr. & Zurich Am. Ins. Co.
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