Flores v. McKay Oil Corp.

• Citation: 192 P.3d 777,2008 NMCA 123
• Decision Date: 11 July 2008
• Docket Number: No. 27,360.,27,360.
• Parties: Harley Harkness, Worker-Appellant, v. McKay Oil Corporation, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees, Raymond FLORES, deceased, Worker-Appellant, v. McKAY OIL CORPORATION, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees, Amanda Valerie Encinias, as mother and guardian of Bryttney Arialina Brito, the natural child of Hector Brito, deceased, Worker-Appellant, v. McKay Oil Corporation, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees, and Rebecca Lucero, as mother and guardian of Nicolette Anastasia Brito, the natural child of Hector Brito, deceased, Worker-Appellant, v. McKay Oil Corporation, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees.
• Court: Court of Appeals of New Mexico

192 P.3d 777

2008 NMCA 123

Harley Harkness, Worker-Appellant, v. McKay Oil Corporation, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees, Raymond FLORES, deceased, Worker-Appellant, v. McKAY OIL CORPORATION, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees, Amanda Valerie Encinias, as mother and guardian of Bryttney Arialina Brito, the natural child of Hector Brito, deceased, Worker-Appellant, v. McKay Oil Corporation, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees, and Rebecca Lucero, as mother and guardian of Nicolette Anastasia Brito, the natural child of Hector Brito, deceased, Worker-Appellant, v. McKay Oil Corporation, and Mountain States Mutual Insurance Company, Employer/Insurer-Appellees.

No. 27,360.

Court of Appeals of New Mexico.

July 11, 2008.

Certiorari Granted, No. 31,267, September 9, 2008.

Royce E. Hoskins, Trenchard & Hoskins, Roswell, NM, for Appellants.

Katherine E. Tourek, French & Associates, P.C., Albuquerque, NM, for Appellees.

OPINION

KENNEDY, Judge.

{1} In this case, we adhere to the general "going and coming rule" in workers' compensation law where oil field workers were killed or injured traveling home from a drilling rig located within commuting distance. We hold that exceptions to the rule, most notably the "traveling employee" exception, do not apply because Appellants were not traveling employees and because the evidence does not establish any other exception. Commuting was not required as an integral part of Appellants' job duties for their employer. We affirm the Workers' Compensation Judge's dismissal of their case.

FACTS AND PROCEDURAL BACKGROUND

{2} Workers Raymond Flores and Hector Brito (Appellants¹) were killed, and workers Harley Harkness and Angelo Apodaca were injured in a one-vehicle accident on their way home from work. Harkness is not a party to this appeal, nor is Apodaca, who brought no claim from the accident.

{3} Brito was driving the crew back to Roswell in his own vehicle at the time of the accident. The truck failed to negotiate a curve at a high speed, had a blow-out in its left rear tire, and rolled over a number of times, ejecting Harkness and Appellants. They were traveling at the end of their work day from the site of an oil drilling rig to Roswell, where they lived. The accident occurred after working hours and away from the work site. All were employees of McKay Oil Corporation (Employer).

{4} Harkness was the driller for the oil crew in which Appellants worked as roughnecks. They were employed to work on an oil rig operating in southeastern New Mexico, approximately thirty-seven miles from Roswell on the 2-p.m. to 10-p.m. shift. As a driller, Harkness was the supervisor of the crew. This drilling crew was paid an hourly wage beginning when they arrived at the work site and ending when they left. Although they characteristically traveled to and from the rig together, the crew members were responsible for their own transportation to and from the rig site. They did not meet at or go to any place associated with the company on their way to or from the rig. They were not paid for travel time or mileage to and from the drill site. As a driller, Harkness was paid a fifty-dollar daily per diem, which the driller has total discretion to spend as he pleases, for which he does not account to Employer, and which is not subject to any rules as to its application. The driller may, as happened in this case, agree to give his per diem to a crew member who actually drives the crew. The crew did not travel in a company vehicle, and at the time of the accident they were traveling in Brito's truck. There were no requirements concerning crews traveling in any particular vehicle, though it was common for them to travel with the driller. Employer did not require or check for insurance or driver's licenses of its drilling crew members.

{5} Appellants and Harkness filed for workers' compensation benefits arising from the accident. Employer denied that the injuries had arisen out of the course and scope of their employment, asserting that they were traveling from work and that recovery was precluded by the going and coming rule. Below, Appellants also raised the issue of whether they were "traveling employees" as an exception to the going and coming rule. The Workers' Compensation Judge (WCJ) determined in a memorandum opinion that Appellants were not traveling employees and that, except for Harkness's case, no exception to the going and coming rule applied to them.

{6} Subsequently, the WCJ entered findings of fact and conclusions of law, finding that the workers commuted daily from their homes to the work site and back and that the accident occurred after normal working hours and away from the workplace. The WCJ further found that no employee was required to travel with Brito to the work site and that each could have traveled in his own vehicle. The WCJ found that the accident was not in the course of employment, did not arise out of Appellants' employment, and was subject to the going and coming rule. The WCJ dismissed Appellants' claims with prejudice.

STANDARD OF REVIEW

{7} When considering an appeal from the Workers' Compensation Administration, we engage in whole record review. Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926. Whole record review involves a review of all the evidence bearing on the WCJ's decision in order to determine if there is substantial evidence to support the result. Leonard v. Payday Prof'l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177; Herman v. Miners' Hosp., 111 N.M. 550, 552, 807 P.2d 734, 736 (1991) ("We will not, however, substitute our judgment for that of the agency; although 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."); Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 129, 767 P.2d 363, 368 (Ct.App.1988) (same). We will affirm the WCJ's decision if, after taking the entire record into consideration and applying the law to the facts de novo, "there is evidence for a reasonable mind to accept as adequate to support the conclusion reached." Leonard, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177 (internal quotation marks and citation omitted).

DISCUSSION

{8} Appellants realize that to prevail in this case, they must demonstrate that the circumstances of Flores's and Brito's deaths occurred outside of the domain of the going and coming rule. Accordingly, they assert that this accident is covered by the traveling employee exception to the rule. This exception would place workers driving home from their jobs within the scope and course of their employment by relating the means and reasons for their driving more directly to the benefit and purpose of their employment than to merely going to work and leaving it. We discuss the going and coming rule, the traveling employee exception, and our conclusion that Appellants' activities fell well short of what would make them traveling employees.

The Going and Coming Rule

{9} The Workers' Compensation Act (the Act), NMSA 1978, § 52-1-1 to -70 (1987, as amended through 2007), is designed to compensate workers for injury arising out of and in the course of employment. The going and coming rule is codified by the Act:

[I]njury by accident arising out of and in the course of employment ... shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer's negligence.

Section 52-1-19 (internal quotation marks omitted). As we recently stated, "an employee enroute [sic] to, or returning from, his place of employment, using his own vehicle[,] is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee." Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 9, 142 N.M. 583, 168 P.3d 155 (alteration in the original) (internal quotation marks and citation omitted), cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674; see Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128 N.M. 601, 995 P.2d 1043 ("Under [the Act], ... workers injured while traveling between home and work are generally not eligible for compensation.").

{10} "It is well settled that this requirement involves two separate inquiries[,]" whether the injury (1) "arose out of" and (2) "in the course of ... employment.... In order to recover benefits, the worker must show that both requirements are satisfied." Kloer v. Municipality of Las Vegas, 106 N.M. 594, 595, 746 P.2d 1126, 1127 (Ct.App.1987). "The term `arising out of' the employment denotes a risk reasonably incident to claimant's work." Id. (citing Losinski v. Drs. Corcoran, Barkoff & Stagnone, P.A., 97 N.M. 79, 80, 636 P.2d 898, 899 (Ct.App. 1981)). It requires that the employment be a contributing proximate cause of the injury. The causative danger must be peculiar to the work itself and not independent of the employment relationship. McDaniel v. City of Albuquerque, 99 N.M. 54, 55-56, 653 P.2d 885, 886-87 (Ct.App.1982). The accidental injury must have its origin in a risk connected with the employment and have flowed from the risk as a rational consequence. Id.; Mortgage Inv. Co. of El Paso v. Griego, 108 N.M. 240, 242-43, 771 P.2d 173, 175-76 (1989). "The phrase, in the course of employment, relates to the time, place, and circumstances under which the accident takes place." Velkovitz v. Penasco Indep. Sch. Dist., 96 N.M. 577, 577, 633 P.2d 685, 685 (1981). We look at 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."...