Smith v. City of Albuquerque

• Decision Date: 06 November 1986
• Docket Number: No. 9179,9179
• Citation: 729 P.2d 1379,105 N.M. 125,1986 NMCA 113
• Parties: Elizabeth SMITH, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, a Self-Insured Employer, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1379

729 P.2d 1379

105 N.M. 125

Elizabeth SMITH, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, a Self-Insured Employer, Defendant-Appellant.

No. 9179.

Court of Appeals of New Mexico.

Nov. 6, 1986.

Jeffrey L. Baker, Tryon, Pompei & Baker, P.A., Albuquerque, for plaintiff-appellee.

Terry R. Guebert, Paul L. Civerolo, Civerolo, Hansen & Wolf, P.A., Albuquerque, for defendant-appellant.

OPINION

DONNELLY, Chief Judge.

The City of Albuquerque appeals from a decision of the district court awarding appellee, Elizabeth Smith, temporary total disability and permanent partial disability in a worker's compensation case. We (1) answer two issues summarily and discuss (2) whether the injury arose out of and in the course of her employment, (3) whether the trial court erred in determining the period appellee was totally temporarily disabled and in finding permanent partial disability, (4) whether the City is entitled to reduction of benefit payments, (5) and whether there was error in failing to find that appellee suffered a separate work-related injury. We affirm, except for that portion of the award which involves overlapping compensation payments for both a prior disability adjudicated under Colorado law and the payments under New Mexico law involving the present claim.

This case involves a worker's injury incurred off the employer's premises during lunchtime. Smith was employed by the City as a risk management coordinator. On January 24, 1984, she had lunch with an assistant city attorney, Barbara Stephenson, at a restaurant in downtown Albuquerque. As Smith and Stephenson left the restaurant, Smith tripped over a carpet strip and injured her back. As a result of this injury, Smith underwent treatment for nerve root compression at St. Joseph's Hospital. Smith was hospitalized a second time, during the month of June, 1984, for psychological and emotional problems, including depression. Thereafter, Smith was again hospitalized at St. Joseph's Hospital from December 10, 1984 until January 14, 1985, for injuries connected with her January 1984 accident.

Prior to sustaining the injury in question, Smith had been employed by Mountain Bell and had suffered an injury to her back in March 1982. Smith was operated upon in March, 1982. Treatment of Smith's prior injury involved a lumbar laminectomy at two levels.

The trial court adopted findings of fact and conclusions of law which recited in part that Smith was required to communicate with attorneys as part of her duties as a risk management coordinator; Stephenson had received prior verbal permission from the city attorney to discuss City business with Smith; the City had a written policy recognizing business lunches as a proper forum for legal department employees to discuss matters affecting the City; the primary purpose of Smith's lunch with Stephenson was to discuss cases on which they had been working; and that seventy-five percent of the lunch meeting between Smith and Stephenson was devoted to the discussion of City business.

Smith's job responsibilities encompassed directing the Risk Management Division, evaluating, negotiating and securing insurance coverage for the City, and assisting in the handling of liability claims against the City. During lunch, Smith discussed both business and personal matters with Stephenson. Smith testified that she treated Stephenson to lunch because the attorney was leaving her job. According to Smith, she and Stephenson discussed City business matters throughout most of their meeting; Smith had reviewed several of her office files preparatory to the luncheon meeting. She also testified that she had been working with Stephenson on several matters, including a water resource and treatment project and a number of claims that the City was attempting to collect. Stephenson confirmed that the central purpose of the lunch was to discuss matters on which they were jointly working.

Smith testified that it was not uncommon for her to attend business lunches on behalf of the City, but that not every lunch she had with a city attorney was a business lunch. Generally, the lunch period from 12:00 noon to 1:00 p.m. was excluded from Smith's normal work hours. The City, however, had adopted a written policy authorizing business lunches and providing that an employee could receive compensatory time for lunch periods involving the transaction of City business. Smith testified that she did not request compensatory time for the January luncheon meeting with Stephenson. The city attorney, Gary O'Dowd, testified that he had instructed Smith not to discuss problems involving City contracts or legal matters with city attorneys without first clearing the matters with him; however, he conceded that Stephenson had prior permission to discuss City business with Smith. Shortly after Smith's injuries and while she was recuperating, the City abolished the position held by her.

1. ISSUES ANSWERED SUMMARILY

(a) The trial court awarded Smith costs of transportation for plane fare in the sum of $613.50 from Hawaii to Albuquerque for trial. The City claims error in awarding costs. The evidence indicates that Smith's husband sought and later obtained employment in Hawaii and she moved there with him during the pendency of proceedings herein. We agree it was error to award air travel to plaintiff as a cost. Costs are recoverable only when they come within the ambit of a statute. Swallows v. Laney, 102 N.M. 81, 691 P.2d 874 (1984). As a general rule, a party is not entitled to per diem or mileage expenses for appearing as a witness in his own case. Id. NMSA 1978, Section 52-1-35(B) (Cum.Supp.1985) of the Workmen's Compensation Act, in effect at time of trial, expressly restricted any award of costs except in the case of a witness who testifies under subpoena. See Sedillo v. Levi-Strauss Corp., 98 N.M. 52, 644 P.2d 1041 (Ct.App.1982); see also Lujan v. Circle K Corp., 94 N.M. 719, 616 P.2d 432 (Ct.App.1980).

(b) The trial court adopted a conclusion of law that Smith was "entitled to pre-judgment interest as provided by law." Our review of the judgment entered herein indicates that the language of the judgment failed to contain any provision providing for an award of prejudgment interest. In the absence of an express provision contained in the court's final judgment providing for an award of prejudgment interest, no such provision will be implied. Findings of fact or conclusions of law of the trial court contained in its decision and not carried forward in its judgment have no effect. See Johnson v. C & H Construction Co., 78 N.M. 423, 432 P.2d 267 (Ct.App.1967).

2. COMPENSABILITY OF INJURY

The City argues that the trial court erred in applying the law to undisputed facts in determining that the accident arose out of and occurred within the scope of employment. Because we do not consider the evidence undisputed and susceptible to only one logical inference, the issue is more appropriately whether the court's conclusion was supported by substantial evidence. Cf. Trembath v. Riggs, 100 N.M. 615, 673 P.2d 1348 (Ct.App.1983).

Lunchtime injuries may be compensable, provided the worker's accident occurred in the course and scope of the worker's employment. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597 (Tenn.1979). An injury occurs in the course of employment depending on the time, place and circumstances under which the accident happened. See Velkovitz v. Penasco Independent School District, 96 N.M. 577, 633 P.2d 685 (1981); Sena v. Continental Casualty Co., 97 N.M. 753, 643 P.2d 622 (Ct.App.1982). Similarly, the injury must arise out of the employment. Velkovitz v. Penasco Independent School District. "Out of" refers to the cause or source of the accident. Martinez v. Fidel, 61 N.M. 6, 293 P.2d 654 (1956). The injury must have been caused by a risk to which the injured person was subjected in his employment. The fact that an employee is off the premises of the employer, and is engaged in an activity having a duality of purpose involving both business and personal matters, does not render the accident noncompensable. Titus v. Fox Chemical Co., 254 N.W.2d 74 (Minn.1977); Lauer v. Citizens Lumber & Supply Co., 170 Pa.Super. 352, 85 A.2d 609 (1952).

The general rule applicable to claims for workmen's compensation for injuries sustained off the premises of an employer during the lunch hour of an employee is discussed in 7 Schneider's Workmen's Compensation, Sec. 1634 (1950):

Ordinarily, where the lunch period is not subject to the employer's control or restricted in any way, and the employee is free to go where he will at that time, if he is injured on the public street, off the premises of the employer, the authorities hold that the injury does not arise out of the employment.

See also Trembath v. Riggs; Berry v. School District of Omaha, 154 Neb. 787, 49 N.W.2d 617 (1951); J.R. Hess, Inc. v. Workmen's Compensation Appeal Bd., 17 Pa.Cmwlth. 87, 329 A.2d 923 (1975); Hudson & Thurston Motor Lines, Inc.

The "going and coming" rule generally precludes compensation for injuries incurred while on the way to assume duties of employment or after leaving such duties. Mountain States Telephone & Telegraph Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978); Beckham v. Estate of Brown, 100 N.M. 1, 664 P.2d 1014 (Ct.App.1983). See also Sec. 52-1-19 (Cum.Supp.1986).

Where, however, the employee is engaged in an off-premise activity during the lunch or meal period in furtherance of his employer's interests, and at the direction of or with the consent of his employer, an injury sustained by the employee may be compensable under the Workmen's Compensation Act. See Tingey v. Industrial Accident Commission, 22 Cal.2d 636, 140 P.2d 410 (1943); Titus v. Fox Chemical Co.; Kahn Bros. Co. v. Industrial Comm'n, 75 Utah 145, 283 P. 1054 (1929) (in bank) (sic); see also 1 A. Larson, The Law of Workmen's Compensation, Secs. 20.20, 21.23 (1985).

As observed in Tingley v. ...