Lujan v. Payroll Exp., Inc., 13394
| Decision Date | 09 June 1992 |
| Docket Number | No. 13394,13394 |
| Citation | 1992 NMCA 63,837 P.2d 451,114 N.M. 257 |
| Court | Court of Appeals of New Mexico |
| Parties | Judie R. LUJAN, Widow of Joseph R. Lujan, Deceased, Claimant-Appellant/Cross-Appellee, v. PAYROLL EXPRESS, INC., a/k/a Payroll Plus, Inc.; Leonard Jensen Logging; and United States Fidelity & Guaranty Company, Respondents-Appellees/Cross-Appellants. |
Claimant-appellant Judie R. Lujan (Claimant) appeals from an order entered by the Workers' Compensation Administration denying her claims for death benefits for herself and her minor children. Claimant alleged that her husband, Joseph R. Lujan (Lujan), died in a compensable accident when he was accidentally poisoned by carbon monoxide at a job site. After a formal hearing, the Workers' Compensation Judge (WCJ) found that Lujan did not die of an accident arising out of and in the course of employment because the risk of accident was not incident to Lujan's employment. Therefore, the WCJ denied Claimant any benefits. Because we believe that the facts of this case cannot be distinguished from our Supreme Court's decision in Allen v. D.D. Skousen Construction Co., 55 N.M. 1, 225 P.2d 452 (1950) [Allen ], we conclude that the WCJ incorrectly applied the law to the facts in this case in denying Claimant benefits, and we reverse on this issue.
The WCJ further found that Lujan's average weekly wage was $240. In making that finding, the WCJ considered only Lujan's wages from Payroll Express, Inc. (Payroll), which had admitted being his employer, and the WCJ excluded sums paid to Lujan by Jensen Logging (Jensen). The WCJ excluded those sums because he found that Lujan received those sums as an independent contractor. We reverse and remand for further proceedings on the issue of whether Lujan was an independent contractor for purposes of the sums Jensen paid him.
Payroll and Jensen (Respondents) filed a cross-appeal, contending that, in the event we reverse the WCJ's finding that the accident was not a risk incident to employment, we should conclude that the WCJ erred in calculating Lujan's average weekly wage because he did not take into account the seasonal nature of Lujan's employment. We affirm on the issue raised by Respondents in their cross-appeal.
Lujan had worked as a lopper since 1985 or 1986. As a lopper, Lujan was required to clean cutting sites of leftover debris after the trees were removed. He was first hired by Jensen. After Jensen contracted with Payroll to provide leased employees, Lujan became Payroll's employee, and Payroll leased his services to Jensen.
Under this arrangement, Payroll hired all of Jensen's employees and provided Jensen with payroll services and other benefits, such as handling all health and workers' compensation insurance matters. Payroll hired Jensen as on-site supervisor of the employees whose services Jensen had leased, and Jensen paid Payroll an amount that equalled the leased employees' wages, plus money sufficient to cover premiums for health and workers' compensation insurance. Payroll, however, was the record employer.
Payroll admitted that under this arrangement, Jensen retained on-site control of the employees, and that it had never hired, fired, or promoted a leased employee without the consent of the business owner to whom the employee was leased. Payroll also stated that the on-site supervisor/business owner is the only supervisor of the leased employees.
Jensen testified that he had the power to terminate Lujan at any time. He also said that lopping was a requirement of his logging business. Other loppers testified that Jensen came to the job sites to inspect their work and would tell them if their work was unsatisfactory. He also directed the crew to different job sites. At some point, he made Lujan supervisor of the lopping crew.
Some time in 1987, Lujan purchased chain saws and trucks from Jensen, and agreed that he would pay Jensen for the equipment from his earnings. Jensen and Lujan also agreed that, in addition to paying Lujan his hourly wage, Jensen would pay Lujan $4.00 per hour for each hour that a chain saw was operated. In exchange, Lujan agreed to bear the maintenance expense of the equipment.
Jensen directed Lujan and his crew to various job sites in New Mexico. Although the crew worked in different areas, the sites were in areas remote from the crew's home, which was Grants, New Mexico, and from other populated areas. As a result, Lujan and his crew camped on the job sites during the job periods and journeyed home on weekends, or every few weeks. The workers did this to save money and time, because the work began early, and the logging sites were usually far from any motel and accessible only by rough roads. Jensen did not require the workers to camp at the job sites and did not supply camping equipment for the workers to use.
At the time of his death, Lujan and his crew were working in the forest near Gallina, New Mexico, a site six to ten miles from a town and about thirty miles from the nearest motel room. Lujan was sleeping in a van he had purchased and had placed a charcoal cooker, or "hibachi," in the van. He lit the hibachi so that he would stay warm during the night. Lujan died from carbon monoxide released by the smoldering charcoal as he slept in the van on October 1, 1988.
The WCJ concluded that the law applicable to this case "is that in effect on and after 6-19-87 to before 1-1-91." See NMSA 1978, Sec. 52-1-20 (effective until January 1, 1991), -28 (Repl.Pamp.1991). The parties agree with that conclusion, and we apply the statutes that the WCJ concluded were applicable.
After considering the facts of this case in light of Allen, we conclude that Lujan sustained an accidental injury arising out of and in the course of his employment within the meaning of Section 52-1-28(A). Allen holds, as this court has applied it, that 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." Arnold v. State, 94 N.M. 278, 279, 609 P.2d 725, 726 (Ct.App.1980). If the worker makes that showing, the so-called "bunkhouse rule" applies. Id. at 280, 609 P.2d at 727.
The bunkhouse rule states that if an employee is required to live on the employer's premises, an injury suffered by the employee while reasonably using the premises is considered as occurring in the course of employment, even if the injury occurs during an employee's leisure time. See Hunley v. Industrial Comm'n, 113 Ariz. 187, 549 P.2d 159 (1976) (en banc) (cited in Arnold ). Under the rule, the worker has the burden of showing "that alternative housing was so impractical as to make living on the employer's premises effectively, a requirement of employment." Gaona v. Industrial Comm'n, 128 Ariz. 445, 448, 626 P.2d 609, 612 (Ct.App.1981).
In this case, Claimant proved that Lujan's presence at the job site was necessary because no other accommodations were available within a reasonable distance, which was the same proof offered in Allen. 55 N.M. at 3, 225 P.2d at 453. It seems particularly unreasonable to suggest that the worker in this case had viable alternative sleeping arrangements, given that the facts introduced at trial showed that the nearest motel rooms were thirty miles away and rented for $20 per night with three people in a room. The WCJ found that Lujan's average weekly wage was $240, or $6 per hour. Based on that wage, the record indicates that other accommodations would have cost Lujan almost half of his daily wages. Even if we include the sums Claimant contends the WCJ should have considered, however, and viewed his average weekly wage as in excess of $527 per week, the distance to be traveled over the available roads precludes a determination that reasonable alternative accommodations were available.
Other authorities have also applied this test of reasonableness to various employer-employee situations. For example, Larson's treatise states "[l]ogically, ... even in the absence of a requirement in the employment contract, residence should be deemed 'required' whenever there is no reasonable alternative, in view of the distance of the work from residential facilities or the lack of availability of accommodations elsewhere." 1A Arthur Larson, Workmen's Compensation Law Sec. 24.40 at 5-270 (1990). "The better view is that expressed in Allen v. D.D. Skousen Construction Co....." Id. at 5-271.
We are not persuaded that the fact that neither Payroll nor Jensen provided camping equipment distinguishes this case in any meaningful way from the facts in Allen. The important issue is whether camping at the job site was reasonably necessary to perform the tasks required by the employer. See Allen v. Industrial Comm'n, 158 Ariz. 292, 762 P.2d 579 (Ct.App.1988) ().
The fact that Payroll was nominally Lujan's employer is irrelevant. For purposes of resolving this issue, Payroll and Jensen are effectively one entity.
We are not certain whether the WCJ's decision that Payroll was Lujan's employer influenced the WCJ's decision on the first issue because the WCJ's letter decision is not part of the record. Because the findings do not...
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