Ramirez v. Dawson Production Partners, Inc.

• Decision Date: 11 January 2000
• Docket Number: No. 19, No. 918, No. 919, No. 921.
• Citation: 128 N.M. 601,995 P.2d 1043
• Court: Court of Appeals of New Mexico
• Parties: Nancy RAMIREZ, as Personal Representative of the Estate of Jose Ramirez, Deceased, Worker-Appellee/Cross-Appellant, v. DAWSON PRODUCTION PARTNERS, INC., and Liberty Mutual Insurance Company, Employer/Insurer-Appellants/Cross-Appellees. Gabriel Alvarez, Worker-Appellee/Cross-Appellant, v. Dawson Production Partners, Inc., and Liberty Mutual Insurance Company, Employer/Insurer-Appellants/Cross-Appellees. and Jesus Cervantes, Worker-Appellant, v. Dawson Production Partners, Inc. and Liberty Mutual Insurance Company, Employer/Insurer-Appellees.

995 P.2d 1043

128 N.M. 601

Nancy RAMIREZ, as Personal Representative of the Estate of Jose Ramirez, Deceased, Worker-Appellee/Cross-Appellant, v. DAWSON PRODUCTION PARTNERS, INC., and Liberty Mutual Insurance Company, Employer/Insurer-Appellants/Cross-Appellees.

Gabriel Alvarez, Worker-Appellee/Cross-Appellant, v. Dawson Production Partners, Inc., and Liberty Mutual Insurance Company, Employer/Insurer-Appellants/Cross-Appellees. and Jesus Cervantes, Worker-Appellant, v. Dawson Production Partners, Inc. and Liberty Mutual Insurance Company, Employer/Insurer-Appellees.

Nos. 19,918, 19,919, 19,921.

Court of Appeals of New Mexico.

January 11, 2000.

Timothy J. Cusack, Cusack, Jaramillo, Romero & Assoc., P.C., Roswell, for Worker-Appellee/Cross-Appellant Ramirez.

Royce E. Hoskins, Trenchard & Hoskins, L.L.P., Roswell, for Worker-Appellee/Cross-Appellant Alvarez and Worker-Appellant Cervantes.

Thomas D. Haines, Jr., Rebecca A. Zuschlag, Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., Roswell, for Employer/Insurer-Appellants/Cross-Appellees.

OPINION

BUSTAMANTE, Judge.

{1} This case requires us to examine the scope of workers' compensation coverage for workers whose work takes them away from home and who are injured while away from home for their employment. We address appeals from a consolidated case before the Workers' Compensation Administration in which three oil field workers injured in an automobile accident between their work site and their homes sought workers' compensation benefits for their injuries. The Workers' Compensation Judge (WCJ) applied the "traveling employee exception" to the "going and coming rule" in awarding benefits to two of the workers but denying benefits to the third. The WCJ ordered that the compensation awards to the two workers be reduced by 30% and 15%, respectively, based on the workers' violations of certain company safety policies and statutory regulations. We affirm in part, reverse in part, and remand with instructions.

FACTS

{2} On August 4, 1997, Jose Ramirez, Gabriel Alvarez, and Jesus Cervantes were working as roustabouts, or roughnecks, for Dawson Production Partners, Inc. (Dawson), which operates an oil field well-servicing business. Ramirez, Alvarez, and Cervantes were part of a "pulling unit" crew, the pulling unit being the mobile rig assembly. Dawson's pulling unit crews consisted of two floor hands, a derrick man, and a rig operator, who oversaw the work of the other crew members. Two such crews, including the one to which Ramirez, Alvarez, and Cervantes were assigned, were working in Mentone, Texas, on a "fishing" operation; that is, they were working to try to retrieve tubing and wire that were stuck in a drill hole. Mentone, Texas, is approximately ninety miles from Hobbs, New Mexico, where the workers' lived and where Dawson maintained its home office.

{3} When Dawson began the fishing operation in Mentone in March 1997, it expected the job to take approximately two weeks. Dawson provided crew members $50 per day, with which they could pay for lodging and meals in the nearby towns of Kermit or Pecos, Texas, and $6.50 per day for travel, including the day of the car accident, for the approximately one-half hour trip each way between the workers' lodgings and the oil field. Everyone understood the purpose of the per diem money; most used it to stay at a motel in Pecos. But workers were not directed specifically on how they were to spend the money, and they received the money even if they did not stay in Pecos on work nights. Dawson also initially provided transportation between Mentone and Hobbs on the workers' days off.

{4} The job took much longer than originally expected, and safety became a concern as the two crews worked around the clock with little time off. Sometime before July 1, 1997, Lilo Quiroz, one of the rig operators at Mentone, and Lonnie Stuward, Dawson's Operations Manager in Hobbs, agreed that crews in Mentone should have an extra member in order for crew members to establish a rotating schedule of regular days off. The idea was that workers would be more well rested and therefore safer as a result of having regularly scheduled days off. In exchange for the extra crew member, however, workers would have to provide their own transportation between Mentone and Hobbs. {5} On August 4, 1997, Ramirez, Alvarez, and Cervantes finished their shift on the pulling unit crew at 5:00 p.m. MDT. Their supervisor, Lilo Quiroz, drove them from the rig site to Mentone, where the three got into a pickup truck Ramirez had borrowed from his cousin. They set out for Hobbs, stopping for a six pack of beer along the way. Five miles north of Kermit, Texas, the truck's left rear tire blew while the truck was traveling at over eighty miles per hour. Ramirez, the driver, lost control of the truck. It swerved and skidded and rolled at least three times before coming to rest on the side of the road. All three workers were ejected from the truck and seriously injured. Ramirez died as a result of his injuries. None of the three was wearing a seat belt, although the seat belt where Alvarez was sitting was broken. All had drunk beer, but none had a significant blood-alcohol concentration. The WCJ found the levels of blood alcohol to be "very low."

{6} After a hearing, the WCJ awarded benefits to Ramirez' estate and to Alvarez, based on the conclusion that Ramirez and Alvarez, as traveling employees, were injured within the course and scope of their employment while traveling to Hobbs. She denied benefits to Cervantes, however, because she concluded he was outside the scope of his employment.

DISCUSSION

{7} Under New Mexico's Workers' Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 1999) (the Act), workers injured while traveling between home and work are generally not eligible for compensation. See § 52-1-19 (excluding from compensation "injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties"). In this respect, the Act codifies what is commonly known in workers' compensation law as the "going-and-coming rule." See Espinosa v. Albuquerque. Publ'g Co., 1997-NMCA-072, ¶ 8, 123 N.M. 605, 943 P.2d 1058. "This rule arises from the recognition that, `while admittedly the employment is the cause of the workman's journey between his home and the factory, it is generally taken for granted that workmen's compensation was not intended to protect him against all the perils of that journey.'" Id. (quoting 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 15.11 (1996)). The going-and-coming rule is subject to a number of exceptions, though, as we have recognized on several occasions. See Espinosa, 1997-NMCA-072, ¶ 8, 123 N.M. 605, 943 P.2d 1058 ("Off-premises injuries sustained while going to or from work are not covered under the [Act] unless they fit within one of several specific exceptions to the going-and-coming rule."); see also Barton v. Las Cositas, 102 N.M. 312, 315, 694 P.2d 1377, 1380 (Ct.App.1984) ("If the employee's work creates the necessity for the travel, then any injury during travel (except for that governed by the `going and coming rule') is compensable."). One of those exceptions—the "traveling-employee" exception— is at issue in this case.

{8} Before discussing the traveling-employee rule in detail, however, we think it necessary to address Dawson's argument that our Legislature's rejection of the rule of liberal construction of the Act in favor of workers precludes us from adopting the traveling-employee rule in this case. See NMSA 1978, § 52-5-1 (1989) ("It is the specific intent of the legislature that benefit claims cases be decided on their merits and that the common law rule of `liberal construction' based on the supposed `remedial' basis of workers' benefits legislation shall not apply in these cases."). We do not agree with Dawson's contention. Liberal construction was "but one of many tools employed by our appellate courts in construing workers' compensation legislation. Liberal construction has historically been tempered by attention to legislative intent and balanced against sound reason and policy. Fundamental fairness to both the workers and employers has long been a guideline." Garcia v. Mt. Taylor Millwork, Inc., 111 N.M. 17, 19, 801 P.2d 87, 89 (Ct.App.1989) (citation omitted). "Section 52-5-1 [simply] calls for a balanced and evenhanded construction of the Workers' Compensation Act." Gomez v. B.E. Harvey Gin Corp., 110 N.M. 100, 102, 792 P.2d 1143, 1145 (1990). {9} As our discussion below indicates, the traveling-employee rule recognizes that the conditions faced by employees working "on the road," away from home and away from their employer's home office, are sufficiently different from the conditions faced by employees merely going to or from their local place of employment on a daily basis to warrant a distinct rule. We need not construe the Act liberally to apply a rule appropriate to the circumstances in which Dawson and its employees working at Mentone found themselves at the time of the accident. Instead, evenhanded construction of the Act requires us to recognize the conditions traveling employees face. Cf. Iliaifar v. SAIF Corp., 160 Or.App. 116, 981 P.2d 353, 356 (1999) (noting Oregon's longstanding recognition of exceptions to going-and-coming rule without reference to passage in 1995 of Or. Rev.Stat.Ann. § 656-012(3) (Supp.1998) abrogating liberal construction of Oregon's workers' compensation statute).

{10} Dawson also argues that we have already rejected the traveling-employee exception with our decision in Arias v. AAA Landscaping, 115 N.M. 239, 849 P.2d 382 (Ct.App.1993), implicitly acknowledging our ability to adopt the traveling-employee exception despite the Legislature's direction that courts not construe the Act liberally. We concede that the facts in Arias bear some similarity to the facts in this case. See id...