Cox v. Chino Mines/Phelps Dodge

• Decision Date: 16 March 1993
• Docket Number: No. 13470,13470
• Parties: Guadalupe P. COX, Claimant-Appellant, v. CHINO MINES/PHELPS DODGE, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1038

850 P.2d 1038

115 N.M. 335

Guadalupe P. COX, Claimant-Appellant, v. CHINO MINES/PHELPS DODGE, Respondent-Appellee.

No. 13470.

Court of Appeals of New Mexico.

March 16, 1993.

[115 N.M. 336] Anthony F. Avallone, Thomas R. Figart, Law Systems of Las Cruces, P.A., Las Cruces, for claimant-appellant.

James C. Ritchie, Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for respondent-appellee.

OPINION

FLORES, Judge.

Claimant appeals from a judgment entered by the Workers' Compensation Judge (WCJ) denying her compensation benefits and dismissing her claim with prejudice. Claimant raises several issues on appeal; however, Employer contests only the issue of whether Claimant sustained an injury "arising out of" her employment as a result of incidents of sexual harassment occurring in the workplace. Accordingly, we address only this issue and affirm.

FACTS

Claimant was hired by Employer in 1979. Claimant complained of several instances of sexual harassment toward her by two fellow employees and one supervisor occurring at the workplace in the period between October 1988 and October 1990. In turn, the WCJ found three instances of sexual harassment occurring in October and December of 1988 and in June of 1989.

Regarding the October and December 1988 incidents, Claimant was accosted on the job by co-worker Patrick Feeley (Feeley), who attempted to hug and kiss her and stated that he wanted to take her to bed. Claimant resisted Feeley's advances and reported both incidents to her immediate foreman. Feeley was confronted by his supervisor after the December 1988 incident and was threatened with discharge if he continued to violate company policy. Such incidents did not reoccur.

Regarding the June 1989 incident, Claimant was at the workplace together with several other co-employees when a fellow employee commented on whether another employee had "got [sic] his job because he sucked cock." Claimant reported this incident to a co-employee at the Industrial Relations Office.

On August 14, 1989, Claimant saw Dr. Campbell, a psychiatrist. At that time she complained of anxiety, gastric pain, depression, sleeplessness, lack of energy, crying spells, and feelings of despair, all due to the incidents of sexual harassment at the workplace. Dr. Campbell continued to treat Claimant and eventually recommended that she take time off work. Claimant was off work from June 20 to July 30, 1990. On August 14, 1990, Claimant filed a claim alleging psychological and physical injuries, as a result of sexual harassment on the job. She sought disability and medical benefits. Claimant was again off work from October 16, 1990, to March 1, 1991. At the time of the hearing on July 1, 1991, Claimant was still working with Employer basically performing the same job duties she was performing in December 1988 and June 1989.

During all material times Employer had a written policy, known to all employees, prohibiting sexual harassment in the workplace. The policy, in pertinent part, provided as follows:

that all employees should work in an environment free of sexual harassment.

... [S]exually harassing conduct in the work place, whether physical or verbal, committed by supervisors or non-supervisory personnel is ... prohibited and will not be tolerated. This includes, but is not limited to, offensive flirtation, advances, propositions, ... sexually degrading words to describe an individual ..., [or] telling of offensive jokes.

In dismissing Claimant's action, the WCJ concluded that (1) Claimant did not sustain an accident "arising out of" her employment with Employer; and (2) sexual harassment was not a practice permitted at Employer's workplace and went against the customs of the employment environment. Accordingly, the workers' compensation claim was dismissed. It is from this dismissal of her claim that Claimant appeals.

DISCUSSION

In order to be entitled to compensation under the Workers' Compensation Act, a claimant must have suffered an injury "arising out of" the claimant's employment. NMSA 1978, Sec. 52-1-28(A) (Repl.Pamp.1987); Montoya v. Leavell-Brennand Constr. Co., 81 N.M. 616, 471 P.2d 186 (Ct.App.1970). To establish that an injury arises out of employment, "it is not sufficient that the injury occurs at work; the disability must have resulted from a 'risk incident to [the] work itself' or 'increased by the circumstances of the employment.' " Candelaria v. General Elec. Co., 105 N.M. 167, 173, 730 P.2d 470, 476 (Ct.App.), cert. quashed, 105 N.M. 111, 729 P.2d 1365 (1986) (quoting Kern v. Ideal Basic Indus., 101 N.M. 801, 802, 689 P.2d 1272, 1273 (Ct.App.), cert. denied, 102 N.M. 7, 690 P.2d 450 (1984)); see also City of Richmond v. Braxton, 230 Va. 161, 335 S.E.2d 259, 261-62 (1985) (for a claimant's injury to arise out of his or her employment, "[i]t is not sufficient to find that the employment is what brought the parties into close proximity[;] ... there must be a causal connection between the conditions under which the work is required to be performed and the resulting injury").

The question of whether a claimant's injury arises out of his or her employment is a question to be determined by the trier of fact. See Gutierrez v. Artesia Pub. Schools, 92 N.M. 112, 115, 583 P.2d 476, 479 (Ct.App.1978) (quoting In re McNicol, 215 Mass. 497, 102 N.E. 697 (1913)). However, where the historical facts of the case are undisputed, as in this case, the question of whether the accident arose out of the employment is a question of law. Edens v. New Mexico Health & Social Servs. Dep't, 89 N.M. 60, 62, 547 P.2d 65, 67 (1976). Here, Employer concedes that Claimant sustained an injury caused by three instances of sexual harassment found by the WCJ to have occurred in the workplace. Whether the facts found by the WCJ establish an injury "arising out of" Claimant's employment is therefore a question of law. See id.

Claimant, citing Board of Education v. Jennings, 98 N.M. 602, 651 P.2d 1037 (Ct.App.1982), argues that an injury on the job as a result of the unsatisfactory work performance of a co-employee is a risk inherent in an employment context. We further understand Claimant to be arguing that Employer's written policy prohibiting sexual harassment established a condition of employment whereby employees must forbear committing acts of sexual harassment on the job as a condition of employment. She therefore submits that one who is injured by a violation of that condition has been injured by an incident related to employment. We disagree for two reasons. First, such an analysis is inconsistent with our recently decided case of Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81 (Ct.App.), cert. denied, 113 N.M. 744, 832 P.2d 1223 (1992). Second, such an analysis ignores the applicable law on the "arising out of" requirement.

Both Claimant and Employer cite out-of-state cases to support their positions that Claimant's injury either did or did not arise out of her employment. We need not list all of the cases and their holdings here. Most of them are collected in Eliot J. Katz, Annotation, Workers' Compensation: Sexual Assaults as Compensable, 52 A.L.R. 4th 731 (1987). We reject the cases cited by Claimant as poorly reasoned or inconsistent with established New Mexico law on the "arising out of" requirement. E.g., Lui v. Intercontinental Hotels Corp. (Hawaii), 634 F.Supp. 684 (D.Haw.1986); Brown v. Alos Micrographics Corp., 150 A.D.2d 888, 540 N.Y.S.2d 911 (1989).

We find Employer's cited cases to be more in line with New Mexico law. However, while some of its cases contain persuasive language that appears to be consistent with our own cases' interpretation of the ...