Griego v. Jones Lang Lasalle
| Decision Date | 16 October 2018 |
| Docket Number | No. A-1-CA-36072,A-1-CA-36072 |
| Citation | 458 P.3d 523 |
| Parties | David D. GRIEGO, Worker-Appellant, v. JONES LANG LASALLE, and The Hartford, Employer/Insurer-Appellee. |
| Court | Court of Appeals of New Mexico |
Pizzonia Law, Justin P. Pizzonia, Rose Bryan, Albuquerque, NM, for Appellant.
Elmore Law, LLC, Jeffrey P. Stradling, Albuquerque, NM, for Appellee.
{1} David Griego (Worker) appeals from the workers’ compensation judge’s (WCJ) compensation order denying him workers’ compensation for an injury resulting from a trip-and-fall that occurred on the job. Worker argues that the WCJ erred in concluding that his accident did not arise out of and in the course of his employment. See NMSA 1978, § 52-1-9 (1973) (). We reverse.
{2} The material facts are not disputed. Worker is employed by a contractor for Intel, Jones Lang LaSalle (Employer), as a maintenance technician. Worker’s duties include "fulfilling tenant service requests and performing preventative maintenance and repairs" at the Intel job site. To fulfill these duties, Worker walks long distances in the corridors of the Intel building, which is over a mile long. Maintenance technicians at Intel walk up to twelve miles each day in the facility’s corridors and average eight miles of walking per day.
{3} It is Intel’s policy for another technician to "spot" the technician performing repairs on a given project for safety reasons due to the dangers of the facility. When spotting another technician, the spotter’s job is to observe and call for help if needed.
{4} On July 6, 2015, Worker was working as a spotter for another maintenance technician. In order to get to the location of his job assignment, Worker was required to walk in the Intel corridors. As Worker walked to his job assignment, he tripped over his own foot, causing him to fall. As a result of his fall, Worker sustained a fracture to his humerus.
{5} There was no substance or object on the floor that caused Worker to fall. There was no sudden noise or bright light that startled Worker when he fell. The floor was even; it had no slope or incline. Nor was there evidence that Worker suffers from any neurological or other deficit, preexisting condition, or infirmity that might have contributed to his fall.
{6} Employer’s insurer (Insurer) denied Worker’s claim for workers’ compensation coverage on grounds that Worker’s fall was not work-related. Worker filed a complaint with the Workers’ Compensation Administration, claiming that he was wrongfully denied workers’ compensation. Employer/Insurer responded that Worker "did not suffer an accidental injury arising out of and in the course of his employment, and the accident was not reasonably incident to his employment."
{7} After trial on the merits and submission of proposed findings of facts and conclusions of law by the parties, the WCJ entered an order determining that Worker was not entitled to workers’ compensation. The WCJ found and concluded that: "[n]o risk reasonably incident to Worker’s employment caused Worker’s fall or injury[,]" "[t]he risk experienced by Worker was not increased by the circumstances of Worker’s employment[,]" and therefore Worker’s accident "did not arise out of Worker’s employment with Employer." Worker appeals.
{8} The narrow issue presented in this case is whether Worker’s trip-and-fall arose out of and in the course of his employment. "Because the material facts in this case are not in dispute, we review de novo" the question of whether Worker’s injury arose out of and in the course of his employment. Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t , 2014-NMCA-019, ¶ 6, 317 P.3d 866 ; see Losinski v. Drs. Corcoran, Barkoff & Stagnone, P.A. , 1981-NMCA-127, ¶ 4, 97 N.M. 79, 636 P.2d 898 ().
{9} In order for an injured worker to receive compensation under the WCA, the worker "must be performing a service arising out of and in the course of his employment at the time of the accident, and the injury must arise out of and in the course of his employment." Garcia v. Homestake Mining Co. , 1992-NMCA-018, ¶ 6, 113 N.M. 508, 828 P.2d 420 ; see NMSA 1978, § 52-1-28 (1987). " ‘Arising out of’ and ‘in the course of employment’ are two distinct requirements." Schultz , 2014-NMCA-019, ¶ 8, 317 P.3d 866. "The principles ‘arising out of’ and ‘in the course of his employment[ ]’ ... must exist simultaneously at the time of the injury in order for compensation to be awarded." Garcia , 1992-NMCA-018, ¶ 6, 113 N.M. 508, 828 P.2d 420.
{10} " ‘[A]rising out of’ ... relates to the cause of the accident." Schultz , 2014-NMCA-019, ¶ 8, 317 P.3d 866 ; see Velkovitz v. Penasco Indep. Sch. Dist. , 1981-NMSC-075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (); Kloer v. Municipality of Las Vegas , 1987-NMCA-140, ¶ 3, 106 N.M. 594, 746 P.2d 1126 (). Accidents that generally satisfy this requirement "include those occurring during acts the employer has instructed the employee to perform, acts incidental to the worker’s assigned duties, or acts that the worker had a common law or statutory duty to perform." Schultz , 2014-NMCA-019, ¶ 8, 317 P.3d 866.
{11} The "course of employment" requirement, "on the other hand, relates to the time, place, and circumstances under which the accident takes place." Schultz , 2014-NMCA-019, ¶ 8, 317 P.3d 866 (internal quotation marks and citation omitted). "[A]n injury occurs in the course of employment when it 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." Id. (internal quotation marks and citation omitted). "The term ‘while at work’ is synonymous with ‘in the course of the employment.’ " Thigpen v. Valencia Cty. , 1976-NMCA-049, ¶ 6, 89 N.M. 299, 551 P.2d 989.
{12} The real dispute in this case concerns whether Worker’s injury arose out of his employment. Worker argues, citing Ensley v. Grace , 1966-NMSC-181, 76 N.M. 691, 417 P.2d 885, that falling at work is a neutral risk that gives rise to a rebuttable presumption that the worker’s injuries are compensable. Worker further argues that because "it is undisputed that [Worker] was performing activities that he was asked to do by his employer" at the time of his fall—"walking through one of [Intel’s] corridors to ... reach a maintenance job within the facility"—his injury arose from his employment.
{13} In Ensley , the bodies of the worker and another coemployee were found in the office where the worker was employed as a bookkeeper. 1966-NMSC-181, ¶ 2, 76 N.M. 691, 417 P.2d 885. The district court found that the coemployee shot and killed the worker, and then took his own life. Id. There was no indication why the worker was shot, nor evidence of misconduct or any contact between the worker and the coemployee, except through their connection at work. Id. Under these facts, the district court concluded that the death of the worker "did not arise out of her employment, and that evidence was not produced to establish a causal connection between the death and the employment." Id. ¶ 3. On appeal, the estate of the worker contended that the district court erred in concluding that the worker’s death did not arise out of her employment. Id.
{14} Citing Larson’s Workers’ Compensation Law , our Supreme Court recognized that workplace risks fall into three categories: (1) those associated with the employment; (2) those personal to the claimant; and (3) those having no particular employment or personal character, which Larson refers to as "neutral" risks. Ensley , 1966-NMSC-181, ¶ 6, 76 N.M. 691, 417 P.2d 885. Observing Larson’s statements that risks such as being assaulted at work for unexplained reasons fall into the category of neutral risks, the Court classified the worker’s death as such. See id. ¶¶ 6-9. Further, the Court adopted Larson’s position that "[w]hen an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death," it would "indulge a presumption or inference that the death arose out of the [worker’s] employment." Id. ¶ 9 Accordingly, because the cause of the worker’s death was unexplained, and in the absence of evidence to rebut the presumption, the Court reversed, determining that the worker’s death arose from her employment. Id. ¶ 10.
{15} "The commonest example" of a neutral risk for which the cause of the harm is "simply unknown" is the unexplained fall. 1 Lex. K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation Law , § 7.04[1][a], at 7-25 (June,...
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Martin v. State
...the "in the course of" requirement, including the "traveling-employee" and "special errands" exceptions. See Griego, 2019-NMCA-007, ¶ 9, 458 P.3d 523 ("The principles 'arising out of' and 'in the course of' his employment must exist simultaneously at the time of the injury in order for comp......