Justice v. Black Rock Servs.

• Docket Number: A-1-CA-38378
• Decision Date: 10 August 2022
• Parties: STEVE JUSTICE, Deceased, Worker-Appellee, v. BLACK ROCK SERVICES and ASSOCIATED BUILDERS & CONTRACTORS, INC., MERIT SHOP WC GROUP, Employer/Insurer-Appellants
• Court: Court of Appeals of New Mexico

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STEVE JUSTICE, Deceased, Worker-Appellee, v. BLACK ROCK SERVICES and ASSOCIATED BUILDERS & CONTRACTORS, INC., MERIT SHOP WC GROUP, Employer/Insurer-Appellants

No. A-1-CA-38378

Court of Appeals of New Mexico

August 10, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission.The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE WORKERS' COMPENSATION ADMINISTRATION Anthony "Tony" Couture, Workers' Compensation Judge

Dunn Law Offices Rodney Dunn Albuquerque, NM for Appellee

Butt Thornton &Baehr PCCarlos G. MartinezScott F. StrombergFelicia C. Boyd Albuquerque, NM for Appellants

MEMORANDUM OPINION

JENNIFER L. ATTREP, Judge

{¶1} Employer Black Rock Services and Insurer Associated Builders & Contractors, Inc., Merit Shop WC Group (collectively Employer) appeal the workers' compensation judge's (WCJ) compensation order awarding death benefits to Worker Steve Justice's son, Jacob, pursuant to NMSA 1978, Section 52-1-46(C)(1)(2013) of the Workers' Compensation Act(the Act), NMSA 1978, §§ 521-1 to -70 (1929, as amended through 2017).We find the arguments Employer raises on appeal either unreviewable or without merit, and we therefore affirm.

DISCUSSION^[1]

{¶2}Employer operates a mine where, at all relevant times, Worker was the plant operator and was permitted to live.Worker died at the mine after work hours when, on his way to turn off a generator, he became pinned between his truck and the generator trailer.After a trial, the WCJ determined Worker's accident was compensable under the Act and awarded Jacob death benefits.Employer challenges four decisions on which the award was based: (1) that Worker's accident arose out of and in the course of his employment; (2) that Worker did not willfully cause his death, and Worker's methamphetamine use did not bar recovery; (3) that Jacob is a dependent, entitled to benefits; and (4) that it was appropriate to rule on Worker's motion for attorney fees while this appeal was pending.We address each in turn.

I.The WCJ's Determination That Worker's Accident Arose Out of and in the Course of Employment

{¶3}As relevant to our discussion here, the Act requires that, to be compensable, an accidental injury must arise out of and in the course of the worker's employment.See§§ 52-1-9(B), -28(A)(1);see alsoSchultz ex rel. Schultz v. Pojoaque Tribal Police Dep't2014-NMCA-019, ¶ 8, 317 P.3d 866("For an injury to arise out of employment, the injury must have been caused by a risk to which the injured person was subjected in his employment....The term 'course of employment,' on the other hand, relates to the time, place, and circumstances under which the accident takes place."(internal quotation marks and citations omitted)).The WCJ made numerous findings of fact pertaining to these inquiries and ultimately concluded that "Worker was killed in an accident arising out of his employment and in the course and scope of his employment."With respect to these determinations, Employer first contends the WCJ erroneously relied on inadmissible hearsay and next challenges the WCJ's application of various doctrines.

A.Hearsay

{¶4}Employer complains about the introduction of statements given to authorities by the night watchman, who was working the evening of Worker's death.Employer contends these statements were inadmissible hearsay and the WCJ erred in relying on them to determine that Worker's accident arose out of and in the course of his employment.We agree with Worker that these claims are unpreserved, and we therefore do not review them.^[2]

{¶5}"To preserve a question for review it must appear that a ruling or decision by the tribunal was fairly invoked."Trace v. Univ. of N.M. Hosp., 2015-NMCA-083, ¶ 11, 355 P.3d 103(alterations, internal quotation marks, and citation omitted);see alsoRule 12-321(A) NMRA.This standard is met when there is a "timely and specific objection" that apprises the tribunal of the nature of the claimed error so that it may make an "intelligent ruling" on the issue.Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791.To aid us in determining whether a ruling was fairly invoked, we require an appellant to include a statement in the brief in chief "explaining how the issue was preserved in the court below."Rule 12-318(A)(4) NMRA.

{¶6} Here, in relation to its hearsay claims, Employer offers no such statement or explanation, but rather a single citation to seventeen pages of the record.The first twelve pages make no mention of hearsay.The remaining five pages comprise a portion of Employer's proposed findings of fact and conclusions of law that were submitted after trial.Although hearsay is mentioned once, in the context of a proposed finding that the night watchman's "statements are hearsay," this is inadequate to have timely apprised the WCJ of the nature of the claimed error so that an intelligent ruling could have been made.Cf.State v. Neswood, 2002-NMCA-081, ¶ 18, 132 N.M. 505, 51 P.3d 1159(holding that an objection was untimely when raised after the testimony was heard, such that the issue would not be considered on appeal);Gutierrez v. Albertsons, Inc., 1991-NMCA-135, ¶¶ 39-40, 44, 113 N.M. 256, 824 P.2d 1058(declining to review a hearsay challenge due to its lack of preservation by objection at trial).We, therefore, conclude that Employer's claims of hearsay regarding the night watchman's statements were not preserved, and we do not review them.

B.The WCJ's Application of Various Doctrines

{¶7} In concluding Worker's accident arose out of and in the course of his employment, the WCJ invoked the "bunkhouse" rule, as well as exceptions to the "going and coming rule"(i.e., the "special errand rule" and the "premises exception").See, e.g., Lujan v. Payroll Express, Inc.1992-NMCA-063, ¶ 13, 114 N.M. 257, 837 P.2d 451(providing that under the "bunkhouse rule""a worker may establish that an injury arose out of and occurred in the course of employment if, in view of the nature of the employment setting and accommodations available, it was contemplated (as distinguished from required) that claimant should utilize the employer's bunkhouse or other on-premises sleeping facilities"(internal quotation marks and citation omitted));Edens v. N.M. Health &Soc. Servs. Dep't, 1976- NMSC-008, ¶ 5, 89 N.M. 60, 547 P.2d 65(providing that "the longstanding 'going and coming' rule . . . precludes compensation for injuries sustained on the way to work and on the way home from work");id.¶ 12(setting out the parameters of the "special errand rule" and recognizing it as an exception to the "going and coming rule");Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, ¶¶ 2, 13, 105 N.M. 503, 734 P.2d 743(adopting the "premises rule" as an exception to the "going and coming rule").Employer disputes the applicability of these doctrines.For two reasons, we find Employer's arguments inadequate to warrant reversal.See, e.g., Villanueva v. Sunday Sch. Bd. of S. Baptist Convention, 1995-NMCA-135, ¶ 26, 121 N.M. 98, 908 P.2d 791("[I]n order to obtain a reversal, an appellant must clearly point out error.").

{¶8} First, to the extent Employer challenges the WCJ's findings of fact in relation to its claims here, such challenge is deficient.While Employer asserts that substantial evidence does not support the WCJ's findings, it does not do the work necessary to make a proper sufficiency challenge.Namely, Employer does not comply with our appellate rules by identifying the specific findings of fact it contends are not supported by substantial evidence.SeeRule 12-318(A)(4).Employer also does not bring to our attention all of the evidence supporting the WCJ's findings; does not state the reasonable inferences that could be drawn from that evidence; and does not explain why all the pertinent evidence, on balance, fails to support the WCJ's findings.SeeMartinez v. Sw. Landfills, Inc., 1993-NMCA- 20, ¶¶ 5, 8-12, 115 N.M. 181, 848 P.2d 1108;accordRule 12-318(A)(3).See generallyMartinez, 1993-NMCA-020, ¶¶ 8-18(outlining the two-step process involved in a sufficiency challenge and the reasons an appellant making such a challenge must engage in it, including that it might lead the appellant to decide the issue is not worth pursuing).Instead, by and large, Employer explains why the evidence supports its desired findings.This, however, is not relevant to the inquiry on appeal.SeeGutierrez v. Amity Leather Prods. Co., 1988-NMCA-006, ¶ 7, 107 N.M. 26, 751 P.2d 710("The issue is not whether there is evidence to support an alternative result, but, rather, whether the trial court's result is supported by substantial evidence.").In light of these failings, Employer's arguments are ineffectual in overturning the WCJ's findings of fact.Because of this, Employer is bound by these findings.SeeMartinez, 1993-NMCA-020, ¶ 18;see alsoRule 12-318(A)(3), (4).

{¶9} Second, Employer's challenge to the WCJ's application of various doctrines in reaching the conclusion that Worker's accident arose out of and in the course of his employment likewise is deficient.As just one example,^[3] in regard to its argument that the WCJ erroneously applied the premises exception, Employer contends Worker was not permitted "to be on the operational mine site powering on or off the small generator."Employer advanced a similar contention in its closing argument to the WCJ, and its proposed findings of fact 60 and 73 are consistent with this argument.The problem for Employer is that the WCJ rejected these arguments and...