Cisneros v. Molycorp, Inc.

• Decision Date: 22 September 1988
• Docket Number: No. 10100,10100
• Citation: 765 P.2d 761,107 N.M. 788,1988 NMCA 80
• Parties: Modesto CISNEROS, Claimant-Appellee and Cross-Appellant, v. MOLYCORP, INC., Respondent-Appellant and Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 761

765 P.2d 761

107 N.M. 788

Modesto CISNEROS, Claimant-Appellee and Cross-Appellant, v. MOLYCORP, INC., Respondent-Appellant and Cross-Appellee.

No. 10100.

Court of Appeals of New Mexico.

Sept. 22, 1988.

Certiorari Denied Dec. 1, 1988.

[107 N.M. 790] Narciso Garcia, Jr., Toulouse, Toulouse & Garcia, P.A., Albuquerque, for claimant-appellee.

Marte D. Lightstone, Campbell & Black, P.A., Santa Fe, for respondent-appellant.

OPINION

MINZNER, Judge.

Molycorp, Inc. (employer) appeals the dispositional order of the Workers' Compensation Administration awarding Cisneros (claimant) compensation for a work-related hearing loss. Employer raises three arguments on appeal: (1) a gradual, noise-induced hearing loss is not an accidental injury compensable under the Workers' Compensation Act but rather is compensable only under the Occupational Disease Disablement Act; (2) even if such a hearing loss is compensable under the Workers' Compensation Act, claimant is time-barred; (3) the hearing officer erred in rejecting evidence of a 1971 hearing examination. Claimant has cross-appealed, contending the hearing officer erred in reducing his award for failure to use safety devices. We affirm.

Claimant worked for employer from 1958 until November 1986, when he was laid off because of a plant shutdown. Claimant experienced a gradual loss of hearing as a result of frequent and continuous exposure to excessive noise. He testified he noticed the hearing loss in 1971 but did not know it was work-related. In 1984, he was fitted for hearing aids. At that time, he told his foreman that his hearing loss was work-related. In January of 1987, he filed a claim for workers' compensation.

After a hearing on the merits, the hearing officer found, based on medical testimony, that claimant suffered a 54.96% hearing impairment and that the hearing loss affected both ears. The hearing officer further found that claimant was able to perform his job duties and other jobs to a percentage extent even though he had suffered a hearing loss. Based on these findings, the hearing officer concluded that the claim fell within the scheduled injury section of the Workers' Compensation Act and computed the compensation due claimant based on the percentage of his loss of hearing.

The parties agree that if the hearing loss is compensable only under the Occupational Disease Disablement Act, claimant cannot recover. We note that the Workers' Compensation Act was amended in 1986 and 1987. See 1986 N.M.Laws, ch. 22, and 1987 N.M.Laws, ch. 235. With one exception, which is noted in the opinion, the parties agree there have been no material changes in the sections pertinent to this appeal.

APPEAL

I. Nature of the Claim.

NMSA 1978, Section 52-3-46 (Repl.Pamp.1987) provides: "In all cases where injury results by reason of an accident arising out of or in the course of employment, no compensation under this act shall be payable, nor shall any compensation be payable under the Workmen's Compensation Act for any occupational disease." (Citation omitted.) Employer contends claimant was required by this statute to seek compensation for an "occupational disease"; not having done so, he is not entitled to benefits.

We disagree that the hearing loss represents an "occupational disease." Consequently, we do not reach claimant's contention that a workplace infirmity may be both an "accidental injury" and an "occupational disease" and that Section 52-3-46 was only intended to foreclose double recovery. See Martinez v. University of California, 93 N.M. 455, 601 P.2d 425 (1979). We believe the hearing loss in this case is compensable under the Workers' Compensation Act, because it was an "accidental injury" within the meaning of that Act.

The right to compensation under NMSA 1978, Section 52-1-9 (Repl.Pamp.1987), arises from a "personal injury accidentally sustained." A claim for workers' compensation shall be allowed only "when the worker has sustained an accidental injury arising out of and in the course of his employment." NMSA 1978, Sec. 52-1-28(A)(1) (Repl.Pamp.1987).

An "accidental injury" is defined in New Mexico as an unlooked-for mishap or some untoward event that is not expected or designed. Gilbert v. E.B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992 (1955); Aranbula v. Banner Mining Co., 49 N.M. 253, 161 P.2d 867 (1945); Candelaria v. General Elec. Co., 105 N.M. 167, 730 P.2d 470 (Ct.App.1986); Lyon v. Catron County Comm'rs, 81 N.M. 120, 464 P.2d 410 (Ct.App.1969). It is not necessary that an injury should result momentarily or be immediately discoverable to be an "accidental injury." It may be produced gradually and progressively. Webb v. New Mexico Publishing Co., 47 N.M. 279, 141 P.2d 333 (1943); Candelaria v. General Elec. Co. The accidental injury requirement is generally satisfied if either " 'the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant's duties.' " See Lyon v. Catron County Comm'rs, 81 N.M. at 125, 464 P.2d at 415 (quoting 1A A. Larson, Workmen's Compensation Law Sec. 38.00 (1967)). New Mexico case law has established that where the strain of the worker's usual exertions causes a collapse there is an accidental injury. Compare Herndon v. Albuquerque Pub. Schools, 92 N.M. 635, 593 P.2d 470 (Ct.App.1978) and Lyon v. Catron County Comm'rs (back injuries) with Candelaria v. General Elec. Co. (psychological disability).

An "occupational disease" is defined as any disease peculiar to the occupation in which the employee is engaged and due to causes in excess of the ordinary hazards of employment as such. NMSA 1978, Sec. 52-3-33 (Repl.Pamp.1987). An "occupational disease" is a natural incident of a particular occupation; the hazard distinguishes that occupation from others and is in excess of that attending employment in general. See Martinez v. University of California; Chadwick v. Public Serv. Co. of N.M., 105 N.M. 272, 731 P.2d 968 (Ct.App.1986). The disease must have its origin in the inherent nature or mode of work of the profession or industry. Aranbula v. Banner Mining Co.

Courts in jurisdictions other than New Mexico have considered several factors in distinguishing between accidental injuries and occupational diseases. The foreseeability of the injury has been adopted as a test by some courts, on the theory that a hazard which is recognized as inherent in continued exposure to conditions of a particular type of employment cannot be the cause of an accidental injury. 1B A. Larson, The Law of Workmen's Compensation Sec. 41.31 (1987). Another factor used to distinguish accidental injuries from occupational diseases is the suddenness of the onset of the injury, so that injuries contracted gradually are occupational diseases and injuries which can be traced to a specific time, place, and cause are accidental injuries. Id. In applying these tests to cases of gradual, noise-induced hearing loss, some jurisdictions have held such hearing loss is an occupational disease and others have held it to be an accidental injury.

For example, in Martinez v. Taylor Forge & Pipe Works, 174 Ind.App. 514, 368 N.E.2d 1176 (1977), the Indiana Court of Appeals held that a gradual, noise-induced hearing loss was not an accidental injury because the hearing loss was neither unexpected nor unforeseen. Loss of hearing would have been expected, anticipated, and foreseen by reasonable and ordinary persons working in the continuously noisy circumstances in which the claimant worked. The court held the hearing loss was not unexpected because nothing extraordinary happened to the claimant except for the continuous noise inherent in his job. The claimant should, therefore, have had reason to anticipate a hearing loss. The court also held that the hearing loss was not an occupational disease.

However, in Hinkle v. H.J. Heinz Co., 462 Pa. 111, 337 A.2d 907 (1975), the Pennsylvania Supreme Court held that the unforeseen factor may be either the circumstances causing the injury or the nature of the injury itself. Where the claimant incurs an injury in the usual performance of his job, the injury may be accidental if the nature of the effect was extraordinary. The court held that the claimant's loss of hearing was unexpected and, therefore, an accidental injury.

Similarly, in Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P.2d 171 (1949), the Kansas Supreme Court stated that although an injury may have resulted from the intentional performance of usual acts in the usual way, an injury will be treated as accidental if it is unexpected by the employee. The court found that the claimant had not expected his hearing loss to be permanent, so that the injury was unexpected and accidental. The court justified this holding, which deviated from Kansas precedent, on the ground that the Kansas Workmen's Compensation Act should be liberally construed.

A "specific time, place, and cause" rule has been adopted by many jurisdictions and is often used in conjunction with the foreseeability test. Thus, it has been said that an injury must be both unforeseeable and traceable to a specific time, place, and cause in order to be an accidental injury. See Martinez v. Taylor Forge & Pipe Works; Winkelman v. Boeing Airplane Co.; Hinkle v. H.J. Heinz Co. In applying this test to gradual, noise-induced hearing loss, courts have reached contradictory results.

The Colorado Court of Appeals denied recovery to an employee who had been exposed to continuous noise made by running lumber through a planer, because the injury was not traceable to a specific time, place, and cause. Martinez v. Industrial Comm'n, 40 Colo.App. 485, 580 P.2d 36 (1978). The court distinguished another Colorado case which allowed recovery for a loss of hearing resulting from monthly exposure to noise at a firing range. The court held that once a month exposure to noise was traceable to a particular time, place, and cause, but continual exposure...