A-1-CA-36048 | Omnilex

Testo completo

OCR transcription for search; preserved printed pages are authoritative

I]
12

13
14
15
16

18
19
20
21

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 11/28/2018 1:31 PM

ji
Filing Date: November 28, 2018 Ae. no [>

Mark Reynolds

Opinion Number:

No. A-1-CA-36048
AMANDA MOTES,

Worker-Appellee,

CURRY COUNTY ADULT DETENTION
CENTER and NMCIA,

Employer/Insurer-Appellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry S. Kramer, Workers’ Compensation Judge

Sanders, Bruin, Coll & Worley, P.A.
Beth L. Hightower

Clayton S. Hightower

Roswell, NM

for Appellee

Hatcher Law Group, P.A.
Scott P. Hatcher

Mark A. Cox

Santa Fe, NM

for Appellants

10
11
12
13
14
15
16
17
18
19

OPINION

ATTREP, Judge.

433 Curry County Adult Detention Center (Employer or the detention center) and
New Mexico County Insurance Authority (Insurer) appeal a Workers’
Compensation Judge’s (the WCJ) order awarding compensation to Worker Amanda
Motes for injuries she sustained while engaged in horseplay on Employer’s
premises. Employer and Insurer contend Worker is not entitled to compensation
because, given the nature of the horseplay, she cannot establish her injuries arose out
of and in the course of her employment as required for compensability by NMSA
1978, Section 52-1-28(A)(1) (1987) of the Workers’ Compensation Act (the Act),
NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2017). We hold that
substantial evidence supports the WC]’s findings and the WCJ did not err in
concluding Worker’s injuries are compensable under the Act. We affirm the
compensation order. |

BACKGROUND

23 Worker had been working at the detention center as a booking specialist for
approximately five weeks when she sustained the injuries at issue in this appeal. As
a booking specialist, Worker was responsible for the “overall operation” of the
booking room and file room at the detention center. Her duties generally involved

classifying and booking new inmates, receiving and recording incoming paperwork,

medication, and visitors, and performing related filing obligations, along with
various other unspecified responsibilities. In her first week on the job, she worked
the day shift and trained with direct supervisors in the booking department. After
that initial training period, Worker made the switch to the night shift.

3} None of her direct supervisors in the booking department and no senior
officials in her direct chain of command worked nights. Instead, typically the most
senior employees on duty at night were sergeants who worked in the detention chain
of command, as opposed to the booking chain of command, and oversaw the
operations of more junior detention officers at the detention center. These sergeants
also served as “supervisory employee[s]” for the facility more generally and served
as the first point of contact for more junior employees from all departments,
including the booking department, when questions or concerns arose. The sergeants
worked from different duty stations interspersed among the departments; the specific
station assignment varied night to night.

{4} Sergeant Jayson Cloud worked as a supervisory sergeant on the night shift
along with other sergeants, and he worked the night Worker sustained her injuries.
Cloud had worked at the detention center for approximately three years at the time
of Worker’s injuries. He had accrued a short history of discipline in his time there—
he had been counseled twice for use of obscene or abusive language toward inmates

and staff, suspended for conduct unbecoming a county employee, counseled for

overriding facility doors while inmates were present, and reprimanded for failing to
report for shifts.

{5} The detention center’s workload at night ebbed and flowed, and the sergeants
and employees in booking and in detention often had downtime. Curry County (the
County) had promulgated and distributed a safety manual to all county employees,
including those employed at the detention center. The manual prohibited horseplay
by employees and advised that horseplay “may subject” employees to disciplinary
action at the discretion of department heads. Worker and Cloud both signed forms
acknowledging they had read and understood the manual’s terms. County Manager
Lance Pyle, who gave deposition testimony for the WCJ’s consideration, could not
recall whether Worker or Cloud had been given any specific safety training above
and beyond the instructions provided in the County’s safety manual, and he could
not produce any documentation recording their attendance at any safety training
sessions the County did provide from time to time.

{6} | Worker and Cloud had established a history of interacting in an apparently
lighthearted way when downtime arose at the detention center. Worker testified that
Cloud had “made it his life goal to terrorize [her] at any given moment.” She added
that they had on previous occasions attempted to mark each other with markers and

spray each other with bug spray and that Cloud “would do stuff like that all the time.”

“10
11
12
13
14
15
16
17
18
19

Cloud confirmed they had in the past attempted to mark each other with markers,
describing the frequency as “from time to time.”

{} | Worker observed that theirs was not unique behavior at the detention center,
recalling, “I [knew] a lot of people there that [did] engage in horseplay, they [did]
have that sort of camaraderie between each other .. . A lot of the officers [did], the
booking officers, and the actual guards themselves.” Other sergeants, she added,
engaged in similar ways during downtime and, she reported, “it was one of those
things where it had become a custom . . . I didn’t think anything of it .. . because it
was something that I saw often.” Worker also testified, in response to a question
about whether she had raised the subject of horseplay with her direct supervisors,
that she had let a supervisor know Cloud often “irritated” her. The supervisor,
however, brushed her off, observing that “that was how [Cloud] was.” By contrast,
Pyle testified that he was unaware the detention center had this culture of activity
during periods of downtime at all, and he emphasized that if the culture existed, “it
should have been reported” so that the County could take “immediate action.” But
neither Pyle nor Cloud could recall any reports or complaints to supervisors
regarding the activity, and Pyle reiterated that if reports had in fact been made, the
County would have investigated and taken action as appropriate.

{83} On the night she sustained her injuries, Worker recalled that work was slow

and she was sitting, waiting in the booking area. A few hours after her shift began,

she and Cloud engaged and attempted to mark each other with markers, as they had
in the past. Cloud withdrew, stepped into a nearby bathroom, and returned with a
can of bug spray. He feigned spraying Worker with the bug spray, and then retreated
out of the booking area. Worker gave chase, running, but she tripped on a short
staircase exiting the.booking area. Her fall resulted in a broken right ankle and fibula.
The entire interaction from the initial engagement to the fall, Worker testified,
occurred in a span of a few minutes or less, as one continuous exchange. Worker and
Cloud both testified this was the first time their downtime interaction had involved
running.

493 Worker eventually sought and received medical attention for her injuries and
reported the accident to Employer. After some consultation with Cloud, Worker
gave a fabricated account of the events giving rise to the injuries in her initial report,
fearing she might lose her job and receive no compensation for the injury were the
actual story to come out. Cloud signed off on the report. The County made its
standard investigation of the report and reviewed surveillance video at the detention
center from the night Worker sustained her injuries. After observing the incident on
video as it actually transpired, the County realized Worker had falsified the initial
report.

10} This was not the first time surveillance video had revealed Worker committing

an infraction at the detention center, as she had previously been seen on video using

her phone in an area where phone use was prohibited and was counseled for that
infraction. Although Worker testified that the surveillance cameras were monitored
around the clock from a station near the booking area, the record does not reveal
when or under what conditions any surveillance might have been reported up a chain
of command. Based on her prior discipline, Cloud’s disciplinary history, the
circumstances surrounding the accident observed in the surveillance video, and the
falsification of the accident report, Employer eventually fired both Worker and
Cloud.

411}. Worker sought workers’ compensation for her injuries, believing they
constituted compensable accidental work injuries. Employer took the position that
Worker’s injuries had arisen not from and in the course of her employment as
required by statute, but instead from non-compensable horseplay. At trial, the WCJ
heard testimony from Worker and argument from the parties regarding the dispute.
The parties also submitted depositions from Cloud and Pyle, along with various
other exhibits and proposed findings of fact and conclusions of law, for the WCJ’s
consideration in making the compensation determination.

{12} In the compensation order, the WCJ made various findings in evaluating the
coverage question, The WCJ found, among other things, that the injury took place
during normal work hours and on Employer’s premises, that “Cloud had engaged in

horseplay with Worker on previous occasions[,]” and that “Employer had not

10
11
12
13
14
15
16
17
18
19

counseled either [Sergeant] Cloud or Worker concerning horseplay any time prior
to the ... incident.” The WCJ added that “Employer did nothing to curtail the
repeated horseplay at any time prior to the . . . incident.” The WCJ further found that
Cloud was the supervisor in charge at the time of Worker’s injury and that
“Employer had surveillance cameras throughout the detention center.” The WC]
also declined to adopt Employer’s proposed findings that “[h]orseplay is further not
tolerated at [the] County and particularly in the secured areas such as the booking
area of the ....[d]etention [c]enter,” and that “[the] County, including the ...
[d]etention [c]enter, does not have a ‘culture’ of horseplay.” Those proposals stood
in contrast to Worker’s proposed finding that “horseplay [was] commonplace at the
[d]etention [c]enter’—a finding implicitly, if not explicitly, adopted by the WCIJ.
Based on his findings, the WCJ concluded Worker’s injury was compensable under
the Act and entered a compensation order in her favor. Employer and Insurer timely
filed this appeal.

DISCUSSION

{13} Employer and Insurer raise several factual and legal arguments in response to
the WCJ’s compensation order. They contend the record cannot support the WCJ’s
finding that Cloud was a supervisor at the detention center such that any knowledge
he had, and any toleration he exhibited, regarding a custom of horseplay at the

facility might be imputed to Employer. They also dispute the finding that Employer

had notice of past horseplay at the detention center based on Employer’s operation
of surveillance cameras. Employer and Insurer present those factual challenges in
support of their main legal argument—that the Act and our prior cases examining
horseplay establish a threshold requirement for compensation that an employer have
notice of a history of horseplay in the employment environment. They maintain that
Worker has not established the requisite notice as a matter of law, and thus contend
the WCJ erred in concluding Worker’s injuries are compensable under the Act.

I. Standard of Review

{14} We review the whole record in workers’ compensation cases to determine
whether substantial evidence supports the WCJ’s findings. See Lewis v. Am. Gen.
Media, 2015-NMCA-090, 7 17, 355 P.3d 850. We review the evidence in the light
most favorable to the decision, and we defer to the WCJ’s resolution of conflicts in
the evidence. See Rodriguez v. McAnally Enters., 1994-NMCA-025, 9 11, 117 N.M.
250, 871 P.2d 14. In cases involving “uncertain, doubtful, or ambiguous findings,”
we are “bound to indulge every presumption to sustain the judgment.” Kincaid v.
WEK Drilling Co., 1989-NMCA-111, 7 28, 109 N.M. 480, 786 P.2d 1214 (operating
under prior version of Rule 1-052(A) NMRA); see also Jones v. Auge, 2015-NMCA-
016, 7 2, 344 P.3d 989 (explaining that “on appeal, a reviewing court liberally
construes findings of fact adopted by the fact finder in support of a judgment” and

“such findings are sufficient if a fair consideration of all of them taken together

10
11
12
13
14
15
16
17

supports the judgment entered below” (alteration, internal quotation marks, and
citations omitted)). In reviewing the whole record, we examine the findings both
expressly and implicitly made, along with any refusals to adopt proposed findings
proffered by a party, in determining whether the WCJ’s final conclusions are
justified. See Molinar v. Larry Reetz Constr., Ltd., 2018-NMCA-011, 7 42, 409 P.3d
956 (examining “express” and “concomitant implied” findings); Jones v. Beavers,
1993-NMCA-100, J 18, 116 N.M. 634, 866 P.2d 362 (explaining that “[t]he trial
court’s refusal to adopt the requested findings of fact is tantamount to a finding
against [the requesting party] on each of these factual issues”); see also State ex rel.
King v. UU Bar Ranch Ltd. P'ship, 2009-NMSC-010, { 44, 145 N.M. 769, 205 P.3d
816 (“When a trial court rejects proposed findings of facts or conclusions of law, we
assume that said facts were not supported by sufficient evidence.”). We review de
novo the WC]’s application of law to the facts found, and we may affirm the WCI’s
order if it reaches the right result, even for reasons the order does not address. See
Maez v. Riley Indus., 2015-NMCA-049, 7 31, 347 P.3d 732. Finally, to the extent
the dispute here raises questions about the appropriate interpretation of the Act, we

review such questions de novo. See Romero v. Laidlaw Transit Servs., Inc., 2015-

NMCA-107, ¥ 8, 357 P.3d 463.

10
1]
12
13
14
15
16
17
18
19

IJ. Compensable Injuries Under the Act

4153 The Act directs that claims for compensation are only to be allowed “when
the worker has sustained an accidental injury arising out of and in the course of his
employment[.]” Section 52-1-28(A)(1); see also Rodriguez v. Permian Drilling
Corp., 2011-NMSC-032, 9, 150 N.M. 164, 258 P.3d 443 (“The Act provides the
exclusive remedy for an employee to receive compensation for an injury arising out
of and in the course of his employment.” (internal quotation marks and citation
omitted)). That an injury may be caused entirely by the negligence of the injured
does not generally change the compensation determination. See § 52-1-8(C) (“In an
action to recover damages for a personal injury sustained by an employee .. . it shall
not be a defense ... that the injury .. . was caused, in whole or in part by the want
of ordinary care of the injured employee where such want of care was not willful.”).
Instead, the relevant language presents two distinct conditions for compensation: (1)
the “arising out of” condition typically calls for a kind of causation analysis, while
(2) the “in the course of’ condition makes reference “to the time, place[,] and
circumstances under which the injury occurred.” Wilson v. Richardson Ford Sales,
Inc., 1981-NMSC-123, J 9, 97 N.M. 226, 638 P.2d 1071. Both conditions are
satisfied where an injury can be characterized as “reasonably incidental to the
employment” or “flowing [from the employment] as a natural consequence.” Jd.

Whether an injury can be described as reasonably incidental to the employment will

9
10
11
12
13
14
15
16
17
18
19

| depend “upon the practices permitted” in the employment and “the customs of the
employment environment generally.” Jd. (internal quotation marks and citation
omitted). More recently, our Supreme Court has observed a critical inquiry in
evaluating the Act’s two compensation conditions is whether “the injury was
sustained during the commission of an activity that is reasonable and foreseeable
both as to its nature and manner of commission.” Rodriguez, 2011-NMSC-032, { 9
(internal quotation marks and citation omitted).

Ii. Injuries Resulting From Horseplay

{16} In horseplay cases, which have not often been examined in New Mexico, we
| have elaborated on the standard inquiry. Historically, both participants and non-
participants were out of luck when it came to recovering for injuries caused by
horseplay—their injuries were said not to have arisen from and in the course of
employment but from some risk foreign to the employment environment. See Woods
v. Asplundh Tree Expert Co., 1992-NMCA-046, ¥ 7, 114 N.M. 162, 836 P.2d 81.
This rule was then relaxed for non-participants, as courts observed the risks created
by fellow workers might often constitute risks of the employment environment itself.
Id. Participants, by contrast, often remained without a route to recovery. Id.
Eventually, however, the participant/non-participant distinction fell out of favor; and
in Woods, this Court recognized a longstanding “trend against the rule denying

recovery solely on the basis of participation [in horseplay] and toward the

10
11
12
13
14
15
16
17
18

elimination of distinctions based on fault.” Jd. 10. We observed that two tests for
evaluating compensability had gained prominence in other jurisdictions, both of
which had been shaped by the trend. See id. [{ 8, 11-12 (identifying the “New York
rule” and the “course of employment test”). Both, we determined, reflected critical
compensation inquiries consistent with New Mexico law. Id. fj 13-14, 27. We thus
concluded both tests may often be useful in determining whether horseplay injuries
satisfy the Act’s “arising out of? and “course of employment” requirements. Jd.; see
also Esckelson v. Miners’ Colfax Med. Ctr., 2014-NMCA-0A2, J 8, 324 P.3d 393
(confirming, more recently, that the Woods analysis applies to “cases in which a
worker is injured while engaging in horseplay”).

{17} The first test Woods identified had come to be known as the “New York rule.”
Woods, 1992-NMCA-046, § 8. The test asks simply whether the activity giving rise
to the injury had “become a regular incident of the employment, rather than an
isolated act.” Jd. Our analysis in Woods revealed that two basic considerations
should guide the application of the New York rule. See id. { 21. First, we examined |
the nature and extent of prior activity similar to the activity giving rise to the injury.
And second, we considered the nature of the specific employment environment more
generally and whether it may be expected to include activity similar to that giving

rise to the injury. Jd.

10
11
12
13
14
15
16
17
18

{18} The second compensability test, which Woods identified as “the course of
employment test,” asks a different question—evaluating whether the activity giving
rise to the injury amounts “to a substantial deviation from the employment.” Id. 11
(internal quotation marks and citation omitted). Under this test, injuries remain
compensable unless they have arisen from substantial deviations. Jd. We highlighted
in Woods several considerations that should guide the evaluation of whether a
horseplay deviation is substantial. See id. | 22. Those considerations include: (1) the
scope and gravity of the deviation; (2) the completeness of the deviation; (3) the
extent to which horseplay has become an accepted part of the employment
environment; and (4) the extent to which the specific employment environment may
be expected to include “such horseplay.” Jd. Given those considerations, we
observed in Woods that application of the course of employment test may often
render more injuries compensable than application of the New York rule. Jd. { 24.
This is the case because injuries arising from various isolated acts, for example,
which might fail under the New York rule, might nevertheless be coverable under |
the course of employment test. Jd. But whether an injury may be compensable under
one test but not the other, the Woods court cautioned, should not generally matter—

the worker “should be able to prevail in New Mexico ifhe or she can factually satisfy

either one.” Jd. 13.

10
11
12
13
14
15
16
17
18
19

419) Before examining each test in light of the facts in this case, we address
Employer and Insurer’s threshold notice argument. Employer and Insurer point to
language from Woods and ask us to impose as a threshold condition for recovery the
requirement that an employer have notice of the horseplay activity giving rise to the
injury. In the course of adopting both the New York rule and the course of
employment test, Woods observed that the old participant/non-participant distinction
would generally no longer be dispositive in making a compensation determination.
Id. 3 15. Instead, Woods recognized, the nature and extent of an injured party’s
participation may often illuminate whether an employer had “actual or constructive
notice” of or “reason to foresee” the activity giving rise to the horseplay. Jd. And
these questions are instructive under both tests. See id, Employer and Insurer have
seized on these observations in Woods regarding notice and submit that the notice
question is properly treated as a threshold inquiry divorced from the two tests. But
asking the notice question in isolation is inconsistent with various principles within
our workers’ compensation jurisprudence. Moreover, because notice is but one
consideration pertinent to the analyses required by the two tests, examining it in
isolation will amount to both an incomplete and redundant exercise.

0} For instance, a danger arises that any generalized notice inquiry may be
understood in its negligence-related sense. Understood that way, notice might tell us

something about an employer’s negligence in allowing certain activity or an

employee’s assumption of the risk. But, as we have repeatedly explained, the
“policies served” by workers’ compensation law differ from those served by tort
law, and mingling their principles is often unhelpful to the task at hand. See, e.g.,
Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, J 9, 142
N.M. 583, 168 P.3d 155; see also Segura v. J.W. Drilling, Inc., 2015-NMCA-085,
q 11, 355 P.3d 845 (“Workers[’] compensation law is ‘sui generis’ and New Mexico
courts have repeatedly declined to mingle its principles with those in other areas of
law.”). The Act, in fact, explicitly disavows many of those classic negligence-related
concepts, and our Supreme Court recently has observed our compensation system is
designed to “eliminate[] employer defenses that frequently prevented injured
workers from recovering for workplace injuries under the common law.” Rodriguez
v. Brand W. Dairy, 2016-NMSC-029, { 13, 378 P.3d 13; see also NMSA 1978, § 52-
5-1 (1990) (“The workers’ benefit system in New Mexico is based on a mutual
renunciation of common law rights and defenses by employers and employees
alike.”).

(213, A closely related problem occurs when an isolated notice question makes
concepts like “personal knowledge, personal acquiescence, [and] personal failure to
prevent recurrence” dispositive in our compensation law. 2 Arthur Larson et al.,
Larson’s Workers’ Compensation Law § 23.05[2], at 23-8 (2017) (cautioning that

these concepts “have no place in compensation law”); see also Crilly vy. Ballou, 91}.

15S

10
1
12
13
14
15
16
17
18
19

N.W.2d 493, 502 (Mich. 1958) (“The employer’s knowledge, actual or constructive,
[its] acquiescence, [its] condonation, are not essential to the compensability of an
injury under our statute.”). As we recognized in Woods, a long line of authority had
observed those concepts may tell us nothing.at all about compensability, because
“[t]he test of liability under the statute is not the master’s dereliction, whether his
own or that of his representatives acting within the scope of their authority.” Woods,
1992-NMCA-046, { 7 (quoting Leonbruno v. Champlain Silk Mills, 128 N.E. 711,
712 (N.Y. 1920) (Cardozo, J.)). The relevant question, instead, is “the relation of the
service to the injury, of the employment to the risk.” Jd. (quoting Leonbruno, 128
N.E. at 712). |

{22} Moreover, proper evaluation of any foreseeability or notice question must
maintain the requisite focus on the “arising out of’ and “in the course of’ elements
under the Act—considerations the New York rule and the course of employment test
are designed to explore, See 2 Larson, supra, § 23.052], at 23-7 (“The controlling
issue is whether the custom had in fact become part of the employment; the
employer’s knowledge of it can make it neither more nor less a part of the
employment—at most it is evidence of incorporation of the practice into the
employment.”); see also Crilly, 91 N.W.2d at 502 (“If the employer is indisposed,
remote from the operation, engrossed in other affairs, even enjoying a well-earned

respite in the Caribbean, will there be a suspension of compensation for operations

10
il
12
13
14
15
16
17
18
19

developed in his absence, or their natural concomitants?”). Evaluation of the nature
and extent of the horseplay and the nature and history of the employment
environment, in other words, will often more closely probe the notice and
foreseeability questions as those concepts must be understood for purposes of the
Act. See Woods, 1992-NMCA-046, § 21 (applying New York rule and analyzing
nature of the horseplay and history, custom, and nature of employment
environment); id. | 26 (applying course of employment test and analyzing nature of
the horseplay and history, custom, and nature of employment environment).

23} Application of the tests themselves, in addition, will ordinarily answer the
question of whether any specific activity should have been foreseeable without the
need for separate inquiry. See 2 Larson, supra, § 23.05[2], at 23-8 (“[A]lmost any | -
practice which had continued long enough to qualify as a ‘custom’ and as ‘part and
parcel’ of the employment could be found to be within the constructive knowledge
of the employer.”), Any activity constituting a regular incident of employment under
the New York rule should thus satisfy any foreseeability requirement for purposes
of the compensation determination, as should any activity not constituting a
substantial deviation under the course of employment test. See Wilson, 1981-NMSC-
123, J 9 (‘An injury reasonably incidental to the employment. . . is compensable.”);
cf. Woods, 1992-NMCA-046; § 25 (summarizing application of course of

employment test and highlighting critical questions of whether the activity is “a

12
13
14
15
16
17
18
19
20

usual practice on the job,” and whether the job is “the type of employment that |
induce[s}” the activity); 2 Larson, supra, § 23.05[2], at 23-7 (stating that “[t}he
controlling issue is whether the custom had . . . become part of the employment”).
(24, Given the purpose of and ground covered by the New York rule and the course
of employment test, we conclude the analytically sounder approach applies the tests
first and reveals and incorporates their respective answers to the notice question
along the way. We decline the invitation to establish any threshold notice
requirement or preliminary inquiry in this context.

IV. The WCJ Did Not Err in Determining Worker’s Injuries- Are
Compensable

{25} Regardless when the notice question is to be resolved, Employer and Insurer
also contend that the WCJ erred in imputing notice to Employer based on a
determination that Cloud was a supervisor engaged in horseplay with Worker and
Employer’s use of surveillance cameras. Employer and Insurer add that the WCJ
erred in concluding Worker’s injuries are compensable under either the New York
rule or the course of employment test. The WCJ omitted explicit application of either
test from his compensation order. As noted above, however, we have often explained
that any combination of a denial of requested findings and the adoption of others
may establish sufficient substance for our review. See, e.g., Jones, 1993-NMCA-
100, { 18; Woods, 1992-NMCA-046, § 26 (reviewing WCJ’s “findings, as well as

the effect of what he refused to find”); see also Maez, 2015-NMCA-049, {| 31

10
1
12
13
14
15
16
17
18
19

(stating that we may affirm a compensation order if it is right for a reason not
addressed by the WCJ). Here, the substance of the WCI’s findings and associated
denials allow for our review of the compensation award under both tests, and we
conclude both tests are satisfied in this case.

A. The New York Rule

26} The New York Tule, as previously noted, asks whether activity giving rise to
an injury constitutes a regular incident of employment as opposed to an isolated act.
Woods, 1992-NMCA-046, J 8. The WCJ made various findings aiding an
examination of that question. The WCI found that Worker’s injury occurred during
regular work hours and on Employer’s premises and that Worker and Cloud had
previously engaged in horseplay of the same or similar nature on multiple occasions.
Worker’s testimony supported both findings; she testified that she and Cloud had
engaged in this kind of activity at work, as frequently as “all the time.” Cloud’s

testimony added support, as he testified they had engaged in this kind of behavior

“from time to time.” The WC] added findings that Worker had no direct supervisor

on duty at the time she suffered the injury and that Cloud was serving as a
supervising employee for the entire facility at the time, as he often had in the past.
Worker and Cloud gave testimony in support of those findings without qualification;
Pyle’s testimony added only the qualification that Cloud may have served as more a

point of contact for Worker than as a supervisor. The WC] also found that Employer

10
il
12
13
14
15
16
17
18
19

had counseled neither Worker nor Cloud for their horseplay at any time prior to the
night Worker sustained her injuries and that Employer had in fact done nothing at
all to curtail the “repeated horseplay” occurring at the detention center prior to the
night of the injury. Pyle and Cloud’s testimony supported those findings as they
could recall no incidents of counseling or reprimand for prior horseplay. Worker’s
testimony corroborated the findings, as she had observed the facility seemed to have
a “custom” of similar activity but could recall no instances of counseling or
reprimand for the behavior.

27; Our whole record review reveals not only that the WCJ’s findings were
supported by the substantial evidence identified, but also that the evidence on these
questions was largely undisputed. Beyond Worker’s testimony and Cloud’s
deposition, there is little in the record regarding any history or absence of horseplay,
its frequency, its nature’ or circumstances, or, more generally, the nature of the
environment at the detention center at night. The limited additional evidence
exploring those considerations came in the form of Pyle’s deposition, which revealed
only that Pyle was “unaware” of any history or reports of horseplay. Neither his .
deposition nor any other evidence in the record, however, provided any information
regarding how often he or any other supervisory employee had occasion to observe
the employment environment at night. Whether Pyle’s deposition created any

conflict with the rest of the evidence presented is unclear given the limited

10
11
12
13
14
15
16
17
18
19

information regarding his familiarity with the work environment at night; regardless,
the WC] was free to resolve any conflict in favor of the testimony given by Worker

and Cloud. See Salazar v. City of Santa Fe, 1983-NMCA-134, { 15, 102 N.M. 172,

692 P.2d 1321 (“We will not disturb the trial court’s resolution of conflicting

evidence[.]”).

28} Despite the evidence demonstrating that horseplay was a regular incident of
employment at the detention center, Employer and Insurer maintain the fact that
Employer had policies in place prohibiting horseplay should weigh heavily in their
favor. In support, they rely on Woods and our decision in Cox v. Chino Mines/Phelps
Dodge, 1993-NMCA-036, 115 N.M. 335, 850 P.2d 1038, both of which affirmed
non-compensability determinations where employers had probative policies in
place. A closer look at each case reveals that neither gave as much weight to the
policies as Employer and Insurer would have us impart here.

429} Whether Cox can tell us much is questionable; it was a case featuring not
horseplay but sexual harassment, and we expressed reservations there about whether
horseplay cases and sexual harassment cases were sufficiently analogous for
purposes of borrowing legal principles. See 1993-NMCA-036, {| 15. We maintain
those concerns today. Even were the contexts comparable, Cox highlighted in
reaching its conclusion not only the employer’s policy prohibiting harassment, but

also the worker’s concessions she had never previously. experienced harassment in

10
11
12
13
14
15
16
17
18
19

her lengthy career and she was unaware of any other history of harassment in the
workplace. See id Policy prohibitions aside, those concessions were integral to the
imported New York rule analysis in Cox. See id. (noting, in addition to specific
policy prohibitions in place, “[c]laimant’s claim fails because sexual harassment was
not a regular incident of the employment”). Our record, by contrast, reveals no such
concessions.

30} The Woods record gave rise to a similarly fact-specific analysis, featuring
evidence that horseplay of the kind giving rise to the subject injury was exceptionally
rare. See 1992-NMCA-046, § 6. Because the horseplay was so uncommon,
moreover, ‘we concluded it appropriate to draw the inference that the employer’s
horseplay prohibitions largely controlled the employment environment, and that
inference supported the conclusion the activity did not constitute a regular incident
of employment. See id. Neither the fact of exceptional rarity nor the associated
inference that a written policy has controlled the customs of the environment,
however, are supported on our record here.

{31} Instead, based on our whole record review, we determine that substantial :
evidence supported the WCJ’s findings that Worker and Cloud had previously
engaged in horseplay, that Employer had not previously counseled Worker or Cloud
regarding the horseplay, and that Employer had done nothing else to curtail repeated

horseplay at the detention center. Those findings in turn support a determination that

10
ll
12
13
14
15
16
17
18
19
20

the activity giving rise to the injury constituted a regular incident of employment, as
opposed to an isolated act, satisfying the New York rule and answering at the same
time in the affirmative the question of whether the activity was reasonably
foreseeable. See id. | 19 (highlighting case where compensability was justified
because “the risks incident to this employment included risks associated with the
friendly jostling customary to the restaurant”). The WCJ’s findings identified here
are sufficient on their own to establish the activity at issue was reasonably
foreseeable for purposes of any notice requirement under our cases and the language
of the Act. Having settled that question, it is not necessary to address whether the
associated findings Employer and Insurer challenge—i.e., that Cloud was a
supervisor and his knowledge could be imputed to Employer and that the
surveillance cameras gave Employer notice of the horséplay—were supported by
substantial evidence.

32} Satisfaction of the New York rule, we note, ends our inquiry under Woods, as
the claimant need only prevail under one of the applicable analytical frameworks to
establish the injury is compensable. See id. § 13. The parties having addressed the
course of employment test in their briefing, however, we examine that test as well.
B. Course of Employment Test

33} The course of employment test, as previously explained, asks whether activity

causing an injury constitutes a substantial deviation from employment and examines:

10
11
12
13
14
15
16
17
18
19

(1) the scope and gravity of any deviation; (2) the completeness of any deviation;
(3) the acceptance of horseplay in the environment; and (4) the extent to which the
environment may be expected to include similar horseplay. Application of these
considerations reveals that Worker’s injury arose out of and in the course of her
employment as required by the Act. .

34} | With respect to the third and fourth factors, the WCJ’s findings neglected to
address specifically the questions of whether horseplay had become accepted in the
environment and whether the environment might be expected to include similar
horseplay. The WCI’s findings, however, that Worker and Cloud had previously
engaged in similar activity and that Employer failed to “curtail:the repeated
horseplay” at the facility address these questions implicitly, and they provide
substance sufficient for purposes of our whole record review. See Molinar, 2018- |
NMCA-011, ] 42 (examining “express” and “concomitant implied” findings). As to
the third factor—the extent that horseplay was accepted or tolerated at the detention
center—Worker testified in support of various contentions, as identified in our

analysis of the New York rule. In short, Worker testified that horseplay was

widespread among employees and that Cloud had often engaged in similar behavior

previously. She testified that her direct supervisor had brushed her off when she had
confided that Cloud was “irritating” her. She added that despite this history, she was

unaware of any instances of counseling or reprimand of any employee for horseplay.

10
11
12
13
14
15
16
17
18
19

Cloud added’ testimony that he and Worker had engaged in similar behavior
previously and that he also could not recall any instances of counseling or reprimand
for horseplay. Pyle was likewise unaware of any instances of counseling or
reprimand. As to the fourth factor—whether the environment might generally be .
expected to include horseplay—Worker testified that the facility featured substantial
downtime and she had been waiting during a familiar lull in work when the horseplay
on the night in question began. All this evidence taken together suggests both the
third and fourth course of employment considerations weigh in Worker’s favor here.
See Woods, 1992-NMCA-046, J 25 (emphasizing considerations of whether
“horseplay was a usual practice on the job” and whether there were “lulls in activity
or shared tasks that would encourage horseplay”).

35} | With respect to the first and second factors, we note again as a prefatory matter
that specific findings on scope, gravity, and completeness are not contained in the
WC)J’s- order. Nevertheless, as we have often remarked, we may draw various
reasonable inferences from the facts found in determining whether a “fair
construction of all of them, taken together,” supports the judgment. Robey v. Parnell,
2017-NMCA-038, 41, 392 P.3d 642 (quoting H.7. Coker Constr. Co. v. Whitfield
Transp., Inc., 1974-NMCA-002, 4 9, 85 N.M. 802, 518 P.2d 782). The WCJ’s order
provides sufficient substance for our review, given the findings actually made and

the ultimate conclusion of compensability, which implicitly determined that

10
il
12
13
14
15
16

18]

Worker’s injury arose out of and in the course of her employment. See id. (“Tf, from
the facts found, the other necessary facts may be reasonably inferred, the judgment
will not be disturbed.” (internal quotation marks and citation omitted)); Salazar,
1983-NMCA-134, 15 (“[T]he trial court’s findings answered the factual questions
. .. Mecessary to determine whether decedent had returned to the course and scope
of his employment.”).

6} As to the first and second factors, Worker’s testimony that the whole incident.
occurred over the course of just a few moments near the booking area supports a
determination that any deviation was narrow in scope and neither grave hor
complete. Cf Salazar, 1983-NMCA-134, {J 14-15 (affirming conclusion that two-
and-a-half hour deviation from commute home in employer vehicle constituted no
abandonment of employment). Cloud’s testimony regarding duration corroborated
Worker’s account. Worker’s testimony regarding the frequent downtime and the
horseplay that often arose at work during the downtime also support a determination
that any deviation was narrow in scope and neither grave nor.complete. See, e.g.,
Whitehurst v. Rainbo Baking Co., 1962-NMSC-126, q 24, 70 N.M. 468, 374 P.2d
849 (“That there was no temporary abandonment of the employment is evidenced
by the fact that while taking the coffee break appellant was, at the same time, waiting
for the delivery ofa truck part in order to complete his work.”); see also, e.g., Dehart

v. Betty Breaux Pers., Inc., 535 So. 2d 456, 458 (La. Ct. App. 1988) (“The courts

10
11
12
13
14
15
16
17
18

have consistently recognized that, during idle periods in the course of employment,
working men will engage in jocular activities with fellow employees”); 2 Larson,
supra, 23.07[6], at 23-27 (“[I]t is suggested that the idleness factor is relevant to
this extent, that the duration and seriousness of the deviation which will be called
substantial should be somewhat smaller when the deviation necessitates the dropping
of active duties than when it does not.”).

37) Employer and Insurer nevertheless contend that Woods compels a conclusion
that the deviation here was substantial. Woods, however, featured a record
supporting findings that (1) the horseplay was highly unusual given the history of
the employment environment as reported by employees, and (2) the resulting
deviation was substantial, in the form of rapid, violent escalation of a physical
confrontation between employees of different employers. See 1992-NMCA-046,
{1 4, 6. The record here, by contrast, reveals that horseplay had become an expected
part of the environment, it occurred often during downtime, and any deviation was
minor, brief, and incomplete. See, e.g., Petrik v. JJ Concrete, Inc., 2015 SD 39, q 22,
865 N.W.2d 133 (concluding injury arising from “running through job site, ...
[h]owever misguided” or rare, was “momentary and impulsive deviation during a
lull in work” and therefore insubstantial). In sum, substantial evidence supports the

determination that any deviation was insubstantial, satisfying the course of

5
6
7

11
12

14
15

16
17

employment test, as well as resolving that the activity here was reasonably
foreseeable for purposes of compensation under the Act.

(38} We, therefore, conclude that, regardless whether the New York rule or the
course of employment test is applied, substantial evidence supports the WC! ’s
findings and the WCJ properly determined that Worker’s injuries are compensable

under the Act because the injuries arose out of and in the course of employment as

required by Section 52-1-28(A)(1) of the Act.
CONCLUSION
39} For the foregoing reasons, we affirm the WCJ’s compensation order.
440} IT ISSO ORDERED.
= c ATTREP, Judge
WE CONCUR: .

MICHAEL E. VIGIL, Jddge

“Ge

J. MILES HANISEE, Judge

November 28, 2018- Amanda Motes v. Courry County Adult Detention Center, No. A-1-CA-36048

Testo completo

OCR transcription for search; preserved printed pages are authoritative

Continua la tua ricerca in ChatGPT o Claude