A-1-CA-36072 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: October 16, 2018 Court of Appeals of New Mexico

Filed 10/16/2018 11:43 A

No. A-1-CA-36072 , Mb fe4
DAVID D. GRIEGO, 7 Mark Reynons

| Worker-Appellant,
v.
JONES LANG LASALLE, and
THE HARTFORD, .

Employer/Insurer-Appellee.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Leonard J. Padilla, Workers’ Compensation Judge

Pizzonia Law
Justin P. Pizzonia
Rose Bryan
Albuquerque, NM

for Appellant
Elmore Law, LLC
Jeffrey P. Stradling
Albuquerque, NM

for Appellee

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OPINION
VIGIL, Judge.
(t} 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) (“The right to the compensation
provided for in [the Workers’ Compensation Act (WCA)] .. . shall obtain in all
cases where the following conditions occur:...at the time of the accident, the
employee is performing service arising out of and in the course of his employment
and... the injury or death is proximately caused by accident arising out of and in
the course of his employment{[.]”). We reverse.

BACKGROUND

3} 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 ifneeded.
44 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 cofridors. 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.”

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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:
“Injo 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.

DISCUSSION

I. Standard of Review

{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, J 6, 317 P.3d 866; see Losinski v. Drs. Corcoran,
Barkoff & Stagnone, P.A., 1981-NMCA-127, 74, 97 N.M. 79, 636 P.2d 898 (“Where
[the] facts are not in dispute, it is a question of law whether an accident arises out of

and in the course of employment.”).

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Ii. Compensability of Worker’s Claim

A. Accidental Injury Arising Out of and in the Course of Employment

93} 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,
q 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. “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.

03} “ ‘[AJrising out of... relates to the cause of the accident.” Schultz, 2014-
NMCA-019, { 8; see Velkovitz v., Penasco Indep. Sch. Dist., 1981-NMSC-075, | 2,
96 N.M. 577, 633 P.2d 685 (“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.”); Kloer v. Municipality of Las Vegas, 1987-NMCA-140, { 3, 106
NM. 594, 746 P.2d 1126 (“The term ‘arising out of the employment denotes a risk
reasonably incident to claimant’s work.”). 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,
q 8.
1} 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-01 9, | 8 (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, 7 6, 89 N.M. 299, 551 P.2d 989. |

B. Injury Arising Out of Employment

42} 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.

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{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, q.2. 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. Jd. 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. 43. 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, J 6. 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

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presumption or inference that the death arose out of the [worker’s] employment.” Id.
{ 9 (stating that “[t]he theoretical justification is similar to that for unexplained falls | .
and other neutral harms: The occurrence of the death within the course of
employment at least indicates that the employment brought deceased within range
of the harm, and the cause of harm, being unknown, is neutral and not personal.”
(internal quotation marks and citation omitted)) 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. Jd. J 10.

45} “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, 2018).

If an employee falls while walking down the sidewalk or across a level
factory floor for no discoverable reason, the injury resembles that from
stray bullets and other positional risks in this respect: The particular
injury would not have happened if the employee had not been engaged
upon an employment errand at the time. In a pure unexplained-fall case,
there is no way in which an award can be justified as a matter of
causation theory except by a recognition that this but-for reasoning
satisfies the “arising” requirement.

Larson, supra § 7.04[1][a]. Consistent with this statement, we conclude that the
rationale of the Ensley Court—that injury or death resulting from the neutral risk of

being ‘assaulted at work for unexplained reasons gives rise to a rebuttable} ©

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presumption that the injury or death arose out of the worker’s employment, where
the accident occurs within the time and space limits of the worker’s employment—
extends to cases of unexplained falls. See Circle K Store No. 1131 v. Industrial
Comm’n of Ariz., 796 P.2d 893, 898 (Ariz. 1990) (in banc) (“An injury arises out of
the employment if it would not have occurred but for the fact that the conditions and
obligations of the employment placed claimant in the position where [claimant] was ,
injured. . . . [C]laimant would not have been at the place of injury but for the duties
of her employment. [Claimant] was required to throw out the trash from her shift,
and was performing this duty on her way home. Consequently . . . her [trip-and-fall] |
injuries ‘arose out of? her employment” (internal quotation marks and citation
omitted)); City of Brighton v. Rodriguez, 318 P.3d 496, 503-06 (Colo. 2014)
(holding that an unexplained fall constitutes a “neutral risk” and satisfies the “arising
out of? employment requirement for workers’ compensation, if the fall would not
have occurred but for the fact that the conditions and obligations of employment
placed the employee in the position where he or she was injured); Hodges v. Equity |
Grp., 596 §.E.2d 31, 35 (N.C. Ct. App. 2004) (permitting an inference that the
worker’s trip-and-fall injury arose from his employment where “the only active force
involved was the employee’s exertions in the performance of his duties” (internal

quotation marks and citation omitted)).

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{16} The undisputed facts of this case are that as Worker walked to a maintenance
job assignment at Intel, he tripped and fell, which resulted in an injury to his arm.
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. Worker admitted at trial, and camera footage of the
accident confirmed, that Worker tripped and fell for no reason other than that “he
tripped over his own foot.” The WCJ further found that “Worker’s
accident .. . occurred while Worker was performing his duties as a spotter” and that
“Tijn order to get to the location of his job assignment as a spotter, Worker was
required to walk in the corridor where he ultimately fell.” Under these facts, we
conclude that Worker’s injury was the result of an unexplained fall, which
constitutes a neutral risk under the foregoing authority. These circumstances,
therefore, give rise to a rebuttable presumption that Worker’s injury arose out of his
employment.

{17}. In this case, Employer/Insurer has failed to rebut the presumption that
Worker’s injury arose from his employment. Specifically, the evidence showed that
Worker “does not suffer from epilepsy, knee dysfunction or deficit, nor dizzy or
fainting spells.” No evidence was presented that “Worker suffers from any

neurological [deficits] or other deficits which might have caused him to fall.” Nor

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was there evidence that Worker has any “preexisting conditions or infirmities that
caused or contributed to his fall.”

18} Accordingly, we determine that Worker’s unexplained trip-and-fall injury
arose out of his employment. See Kennels v. Bailey, 610 S.W.2d 270, 271-72 (Ark.
Ct. App. 1981) (awarding workers’ compensation to employee of a kennel who fell
and was injured while walking to refill a bottle of disinfectant that she was using to
clean kennels, on grounds that the injury from her unexplained fall arose out of her
employment); Metro. Sch, Dist. v. Carter, 803 N.E.2d 695, 698-99 (Ind. Ct. App.
2004) (affirming award of workers’ compensation to a school employee who
testified that she fell and was injured for no reason other than that she “tripped over
her own two feet” while turning to walk out of a classroom, on grounds that the
injury from her unexplained fall arose out of her employment (internal quotation
marks omitted)); Worthington v. Samaritan Med. Cir., ONYS3d 290, 291-92 (N.Y.
App. Div. 2015) (affirming award of workers’ compensation to a nurse who, during
her rounds, fell as she was walking down a hallway when her foot became stuck and
she fell forward, on grounds that the injury from her unexplained fall arose out of
her employment); Hubble v. State Accident Ins. Fund Corp., 641 P.2d 593, 593-94 |
(Or. Ct. App. 1982) (awarding workers’ compensation to a construction inspector

who, while walking down a straight corridor to get to a work assignment at the

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University of Oregon, fell when his knee simply “buckled” while taking a step, on
grounds that his injury from his unexplained fall arose out of his employment).

{19} Inso concluding, we reject Employer/Insurer’s reliance upon Luvaul v. A. Ray
Barker Motor Co., 1963-NMSC-152, 72 N.M. 447, 384 P.2d 885; Berry v. IC.
Penney Co., 1964-NMSC-153, 74 N.M. 484, 394 P.2d 996; and Griego-Melendez v.
Souper Salad, Inc., No. A-1-CA-29719, 2010 WL 3969296, mem. op. (N.M. Ct.
App. Jan. 25, 2010) (nonprecedential). First, as our Supreme Court. observed in
Ensley, 1966-NMSC-181, , 6, Berry and Luvaul, present fact patterns in which the
workers’ injuries were caused by risks that were personal to each of them
individually, and therefore were noncompensable. See Berry, 1964-NMSC-153, {f
2, 8-13 (affirming denial of a salesperson’s claim for workers’ compensation on
grounds that her injury did not arise out of her employment, where the evidence
supported a finding that the salesperson’s back sprain that occurred when she picked
up some boxes from a table in the store arose out of a risk personal to her—a
congenital curve fn her lower spine—and was not increased or aggravated by
employment); Luvaul, 1963-NMSC-152, §f 1-2, 14, 16, 22-25 (affirming denial of
an automobile mechanic’s workers’ compensation claim on rounds that his fall and
resulting injury after becoming dizzy while on the job did not arise out of his
employment where the evidence showed that the injury arose fro risks personal to

him—he had suffered from dizzy spells and fainting feelings for years, as well as

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had a history of acute brain syndrome possibly due to secondary intoxication).

|| Additionally, because we are not bound by Griego-Melendez, a nonprecedential

memorandum opinion of this Court, and because the appeal was decided under the
same ‘personal risk’ analysis applied in Luvaul, which we concluded above is
inapplicable to this neutral risk case, we decline to follow the case here. Griego-
Melendez, No. A-1-CA-29719, mem. op. at **1-4,

C. Injured in the Course of Employment

420} The parties do not dispute, and we agree, that Worker fell and was injured in
the course of his employment. Worker’s duties as a maintenance technician include
“fulfilling tenant service requests and performing preventative maintenance and
repairs” at various locations at Intel. On the day he was injured, Worker was working
as a spotter for another maintenance technician at Intel. To get to the location of his
job assignment as a spotter, Worker was required to walk the Intel corridors. As
Worker walked to his job assignment, he tripped over his own foot, causing him to
fall and be injured. These facts demonstrate that Worker’s fall and injury occurred
while he was at work—during the period of his employment, at a place where |.
Worker may reasonably be, and while he was reasonably fulfilling the duties of his

employment. See Schultz, 2014-NMCA-019, { 8.

—

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CONCLUSION

213. The compensation order of the WC] is reversed. We remand the case to the

Workers’ Compensation Administration for further proceedings in accordance with

this opinion.

22} ITISSO ORDERED.

WE CONCUR:

Poth —

Vive E. VIGIL, Judge

L M.ANZL, Chief Judge

DANIEL J. LEGOS, Judge

October 16, 2018- David Griego v. Jones Lang Lasalle, No. A-1-CA-36072

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