May 30, 2012 – Sonya Castillo, Personal Representative over the Estate of Alfredo Castillo, individually, and as next friend of the minor children, Brian Lopez, Christian Castillo, and Julissa Castillo, No. 31,499

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 30, 2012

NO. 31,499

SONYA CASTILLO, Personal Representative

over the Estate of ALFREDO CASTILLO,

individually, and as next friend of the minor

children, BRIAN LOPEZ, CHRISTIAN

CASTILLO, and JULISSA CASTILLO,
Plaintiffs-A ppellants,

V.

CAPROCK PIPE & SUPPLY, INC.,
Defendant- Appellee.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William G.W. Shoobridge, District Judge

Max Houston Proctor
Hobbs, NM

Dick Blenden
Carsbad, NM

for Appellants

Miller Stratvert P.A.
Erica R. Neff
Timothy R. Briggs
Albuquerque, NM

for Appellee

OPINION
KENNEDY, Judge.
{1} 	The sole issue before us today is whether the injury and resulting death of a
worker caused by a disease contracted from pigeons roosting in the warehouse where
he worked falls within the exclusivity provisions of the Workers’ Compensation Act
(Act), NMSA 1978, §§ 52-1-1 to -70 (1987, as amended through 2007), or the
Occupational Disease Disablement Law (Disablement Law), NMSA 1978, §§ 52-3-1
to -60 (1945, as amended through 2003). 	In this case, Alfredo Castillo contracted
psittacosis from exposure to roosting pigeons while working as a warehouse laborer
at Caprock Pipe & Supply, Inc. (Defendant). As a result of the disease, Castillo died.
Castillo’s estate, wife, and children (Plaintiffs) brought a wrongful death action on
Castillo’s behalf against Defendant for damages.
{2} 	Caprock moved to dismiss the case on the ground that it was barred by the
exclusivity provisions of the Act and the Disablement Law. 	The district court
dismissed the case, holding that the allegations of Plaintiffs’ complaint fell within the
exclusivity provisions of either law. For reasons explained below, we conclude that
Castillo’s injury and death do not fall within the exclusivity provisions of the
Disablement Law, but are covered by the Act. We therefore affirm the district court’s
decision to dismiss because Plaintiffs’ lawsuit is precluded by the Act.

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I. 	STANDARD OF REVIEW
{3} 	“A motion to dismiss for failure to state a claim should not be granted unless
it appears that [the] plaintiff cannot recover, or be entitled to relief, under any state of
facts provable under the complaint.” Duran v. N.M. Monitored Treatment Program,
2000-NMCA-023, ¶ 19, 128 N.M. 659, 996 P.2d 922 (internal quotation marks and
citation omitted). We assume all factual allegations included in the complaint are true,
but “conclusions of law are not [considered] admitted.” Id. The applicability of the
Disablement Law or the Act is a question of law that we review de novo. Banks v.
IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 11, 134 N.M. 421, 77 P.3d
1014; Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 21, 127 N.M. 47, 976 P.2d
999.
II. 	DISCUSSION
A. 	The Disablement Law Does Not Apply
{4} 	By creating both the Disablement Law and the Act, the Legislature intended “to
assure the quick and efficient delivery of indemnity and medical benefits to injured
and disabled workers at a reasonable cost to the employers.” NMSA 1978, § 52-5-1
(1990).
[Both laws] fulfill[] [their] purpose through a bargain in which an injured
worker gives up his or her right to sue the employer for damages in
return for an expedient settlement covering medical expenses and wage

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benefits, while the employer gives up its defenses in return for immunity
from a tort claim.
Morales v. Reynolds, 2004-NMCA-098, ¶ 6, 136 N.M. 280, 97 P.3d 612. The right
to compensation is exclusive under the Disablement Law only when “the disablement
or death is proximately caused by an occupational disease arising out of and in the
course of his employment, and is not intentionally self-inflicted.” NMSA 1978, § 52-
3-8(C) (1953). 	At issue here is whether there is sufficient causation to categorize
Castillo’s disease as occupational. NMSA 1978, Section 52-3-32 (1989) states what
is required to establish causation:
The occupational diseases defined in [NMSA 1978, Section
52-3-33 (1973)] shall be deemed to arise out of the employment only if
there is a direct causal connection between the conditions under which
the work is performed and the occupational disease and which can be
seen to have followed as a natural incident of the work as a result of the
exposure occasioned by the nature of the employment and which can be
fairly traced to the employment as the proximate cause. 	The disease
must be incidental to the character of the business and not independent
of the relation of employer and employee. The disease need not have
been foreseen or expected but after its contraction must appear to have
had its origin in a risk connected with the employment and to have
flowed from that source as a natural consequence.
(Emphasis added.)
{5} 	The Disablement Law clearly requires the disease to be closely related to the
nature of the employment. To be covered by the Disablement Law, “the disease must
be one due wholly to causes and conditions which are normal and constantly present

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and characteristic of the particular occupation[.] . . . Every worker in every plant of
the same industry is alike constantly exposed to the danger of contracting a particular
occupational disease.” Marable v. Singer Bus. Machs., 92 N.M. 261, 262, 586 P.2d
1090, 1091 (Ct. App. 1978) (internal quotation marks and citation omitted). There
must be some “recognizable link between the disease and some distinctive feature of
[the worker’s] job.” Martinez v. Univ. of Cal., 93 N.M. 455, 457, 601 P.2d 425, 427
(1979) (internal quotation marks and citation omitted). 	“To come within the
definition, an occupational disease must be a disease which is a natural incident of a
particular occupation, and must attach to that occupation a hazard which distinguishes
it from the usual run of occupations and is in excess of that attending employment in
general.” Herrera v. Fluor Utah, Inc., 89 N.M. 245, 247, 550 P.2d 144, 146 (Ct. App.
1976) (internal quotation marks and citation omitted). 	“It must be one which is
commonly regarded as natural to, inhering in, an incident and concomitant of, the
work in question.” 	Marable, 92 N.M. at 262, 586 P.2d at 1091 (internal quotation
marks and citation omitted).
{6} 	In the present case, with relation to this issue of causation, Defendant solely
argues that Castillo “was exposed to pigeons in the work environment due to his
particular occupation . . . as a warehouse laborer in an open-air warehouse.” There is
no evidence in the record, nor does Defendant cite any, that pigeons or psittacosis

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were incidental to the character of the oilfield supply business, or such businesses that
employ people within warehouses. 	Nor is it otherwise obvious to the Court, from
factually analogous case law or common knowledge which links particular injuries
with particular occupations, that there is a known natural incident of psittacosis which
relates to employment within the oilfield or warehouse-laborer occupational field.
Thus, we cannot conclude that psittacosis was a natural incident of Defendant’s
employment in the warehouse. Therefore, the Disablement Law does not apply to this
set of facts. 	We next determine whether Castillo’s death would be covered
exclusively by the Act.
B. 	The Act Is Plaintiffs’ Exclusive Remedy
{7} 	For the Act to apply and preclude a cause of action by the employee, three
requirements must be met:
A. 	[A]t the time of the accident, the employer has complied
with the provisions thereof regarding insurance;
B. 	[A]t the time of the accident, the employee is performing
service arising out of and in the course of his employment; and
C. 	[T]he injury or death is proximately caused by accident
arising out of and in the course of his employment and is not
intentionally self-inflicted.
NMSA 1978, § 52-1-9 (1973). 	Plaintiffs do not dispute the accidental nature of
Castillo’s death. Rather, Plaintiffs argue that the third prong cannot be met, in that

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Castillo’s death was not an accident “arising out of and in the course of [his]
employment” and, thus, falls outside of the Act. “The term ‘arise out of’ relates to the
cause of the injury, while the phrase ‘in the course of’ refers to the time, place and
circumstances under which the injury occurred.” Wilson v. Richardson Ford Sales,
Inc., 97 N.M. 226, 229, 638 P.2d 1071, 1074 (1981). We address each factor, starting
with “in the course of employment.” Id.
1. 	In the Course of Employment
{8} 	Plaintiffs argue that “in the course . . . of employment” requirement has not
been met because, although the injury took place during the period of employment and
at the place of employment, the circumstances of Castillo’s injury were not related to
his employment. See Chavez v. ABF Freight Sys., Inc., 2001-NMCA-039, ¶ 10, 130
N.M. 524, 27 P.3d 1011 (“‘[I]n the course of’ . . . refers to the time, place, and
circumstances under which the injury occurred.” 	(alterations in original) (internal
quotation marks and citation omitted)). 	Plaintiffs state that “[t]he ‘condition’ at
Defendant’s premises, i.e., roosting pigeons, was in no way linked to . . . Castillo’s
employment, other than [by] location.” 	Plaintiffs appear to argue that roosting
pigeons were unrelated to Castillo’s job and, therefore, the injury did not occur under
the circumstances of employment.

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{9} 	Plaintiffs misinterpret the meaning of “circumstances” with regard to how our
case law has defined the “in the course of employment” requirement. “The phrase,
in the course of employment, relates to the time, place, and circumstances under which
the accident takes place.” Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 10, 144
N.M. 782, 192 P.3d 777 (internal quotation marks and citation omitted). But, we take
this to mean that “an 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.” Grimes v. Wal-Mart Stores Inc., 2007-NMCA-028, ¶ 7,
141 N.M. 249, 154 P.3d 64 (alteration, internal quotation marks, and citation omitted).
“If the worker was not reasonably involved in fulfilling the duties of his employment
at the time of his injury, he was not acting within the course of his employment.”
Flores, 2008-NMCA-123, ¶ 10. 	This inquiry relates to the predictability and
reasonableness of the worker’s actions in becoming injured and not to the employer’s
contributions to the injury by permitting pigeons in a work area. 	Thus, the
“circumstances under which the injury occurred” refer to the employee’s actions:
whether the employee was performing the duties of his job when the injury occurred.
{10} 	Here, allegations by Plaintiffs established that Castillo contracted the disease
while performing the duties of his employment, during work hours, while at

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Defendant’s warehouse. 	Therefore, the requirement that the injury occur “in the
course of his employment” has been met. The fact that pigeons were roosting in the
warehouse does not factor into this inquiry because that fact has application to the
question of causation, rather than whether an injury occurred in the course of
employment. We therefore next analyze whether the cause of the injury meets the
requirements of the Act.
2. 	Arising Out Of Employment
{11} 	As stated above, the Act requires that the injury “is proximately caused by
accident arising out of . . . [the worker’s] employment.” § 52-1-9(C). Plaintiffs argue
that causation cannot be met because Castillo’s injury was not related to his job duties
and that “contracting psittacosis from roosting pigeons is not a rational consequence
of being a warehouse laborer.” 	Plaintiffs state that roosting pigeons are not “an
inherent part of one’s job as a warehouse laborer at an oilfield supply business.”
{12} 	Our case law has established that “‘arising out of employment’ . . . require[s]
a showing that the injury was caused by a peculiar or increased risk to which claimant,
as distinguished from the general public, was subjected by his employment.” Berry
v. J.C. Penney Co., 74 N.M. 484, 485-86, 394 P.2d 996, 997 (1964) (internal
quotation marks and citation omitted). 	“[T]he accident must result from a risk
incident to the work itself.” Id. at 485, 394 P.2d 997; see Williams v. City of Gallup,

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77 N.M. 286, 289, 421 P.2d 804, 806 (1966) (“The employment must contribute
something to the hazard of the [injury].”). “An injury arises out of employment if the
claimant was performing acts the employer instructed the claimant to perform, acts
incidental to the claimant’s assigned duties, or acts which the claimant had a common
law or statutory duty to perform.” Chavez, 2001-NMCA-039, ¶ 10 (internal quotation
marks and citation omitted).
{13} 	In this case, Castillo’s injury was caused by his exposure to pigeons and pigeon
feces within Defendant’s warehouse. Castillo had a peculiar or increased risk of being
exposed to pigeons solely as a result of his employment in a warehouse occupied by
pigeons. And it appears that this risk was particular to Castillo and his fellow laborers
at this warehouse and not the general public because the allegations of roosting were
limited to the warehouse. 	During the time that Castillo contracted psittacosis,
Plaintiffs indicate that Castillo was performing activities that he was instructed to do
by Defendant. Specifically, he was working as a laborer in the warehouse. They do
not contend that he was performing abnormal, or non-work-related activities that
caused him to be exposed to the pigeons. Although Castillo appears to have met the
basic requirements for causation and is thus subjected to the Act’s exclusivity
provisions, the issue remains as to whether causation can be negated on the basis that

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the 	injury 	was 	precipitated 	by 	unusual 	circumstances 	connected 	with 	the
environmental conditions of the employment.
{14} 	In Stevenson v. Lee Moor Contracting Co., the New Mexico Supreme Court
addressed a very similar question when considering whether a truck driver’s injury
was exclusively covered by the predecessor of the present Act. 45 N.M. 354, 356, 115
P.2d 342, 343 (1941). The truck driver was employed by a road building contractor
and became ill with pneumonia after one day of driving and operating a particularly
heavy truck that emitted excessive dust and fumes. Id. At trial, evidence established
that the excessive gases were inhaled by the truck driver and irritated his respiratory
tract “to such an extent that the pneumo[]cocci germs were enabled to multiply and
become active in [the truck driver’s] body . . . resulting in pneumonia.” Id. At issue
on appeal, similar to the case at bar, was causation. The then-version of the Act also
required “the injury or death [to be] proximately caused by accident arising out of and
in the course of his employment[.]” Id. at 358-59, 115 P.2d at 345 (emphasis, internal
quotation marks, and citation omitted). The Court recognized that “[i]t is common
knowledge that the breathing of fumes and gases by truck drivers performing such
labor does not ordinarily cause pneumonia.” Id. at 371, 115 P.2d at 353. Nonetheless,
the Court reasoned:
The effect of the findings of the court is that [the truck driver] was
exposed to extraordinary hazards, greater than those of the community

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generally, who are engaged in truck driving, and greater than that of any
other workman engaged in truck driving on the same job, and greater
than ordinarily incident to the labor in which he was engaged.
Id. at 371-72, 115 P.2d at 353. The Court stated that, “[u]nder such state of facts[,]
the courts generally agree that the injury sustained is by accident, and compensable
under [the Act]” and held that the Act applied to the truck driver’s injury. Id. at 372,
115 P.2d at 353. The Court explained that “a disease, which is not the ordinary result
of an employee’s work . . . but contracted as a direct result of unusual circumstances
connected therewith, is to be considered an injury by accident” under the Act. Id. at
372-73, 115 P.2d at 353 (alteration in original) (internal quotation marks and citation
omitted); see Gerber Products v. McDonald, 691 S.W.2d 879, 881 (Ark. Ct. App.
1985) (holding that the claimant’s injury was covered by worker’s compensation
where she was bitten by a spider while working on a food processing line); Oalmann
v. Brock & Blevins Co., 428 So. 2d 892, 896 (La. Ct. App. 1983) (holding that flea
bites, causing an iron worker in a paper mill to get typhus fever, constituted an
accident within intendment of workers’ compensation law); Lepow v. Lepow Knitting
Mills, Inc., 43 N.E.2d 450, 452 (N.Y. 1942) (concluding that the death of salesman
from malaria contracted from a mosquito bite while on a business trip in South Africa
was covered by workers’ compensation law).

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{15} 	This Court also addressed a similar issue of causation in Schober v. Mountain
Bell Telephone, 96 N.M. 376, 630 P.2d 1231 (Ct. App. 1980). In Schober, a worker
sought to secure workers’ compensation benefits after he collapsed at work due to
exposure to cigarette smoke, to which he was allergic. Id. at 378, 380, 630 P.2d 1233,
1235. 	The employer argued that the worker’s “collapse was due to idiopathic
sensitivity to tobacco smoke and not to any risk inherent in his employment.” Id. at
380, 630 P.2d 1235. The employer contended that the injury therefore did not arise
out of his employment and was not covered by the Act. Id. The evidence indicated
that the areas where the worker worked contained tobacco smoke and “[a]ny and
everyone who worked there was subjected to the smoke and to the risk that they might
be or become allergic to it.” Id. at 381, 630 P.2d 1236. We explained that, for the
worker, “employment at Mountain Bell where others smoked contributed something
to the hazard that he would ultimately collapse as his tolerance to cigarette smoke
decreased.” 	Id. 	We concluded that the worker’s continuous exposure to tobacco
smoke was a significant cause of his injury and, therefore, the injury did arise out of
his employment. Id.
{16} 	These cases lead us to conclude that, although the pigeons were an unusual
circumstance of Castillo’s employment and that pigeons and psittacosis may not be
inherent risks of working in a warehouse, his injury is nonetheless exclusively covered

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by the Act. Castillo was clearly subject to a greater risk of contracting psittacosis by
working in Defendant’s warehouse. Like in Stevenson and Schober, the continuous
exposure to pigeons and pigeon feces at work was a significant cause, if not the cause
of his injury. It was because of his employment that Castillo contracted the disease
and died. 	In other words, a risk of his employment at the warehouse, however
unusual, resulted in the injury. 	Therefore, we conclude that, even though the
causation was unusual, the injury was sufficiently connected to his employment for
recovery to be exclusively covered by the Act. 	The district court did not err in
dismissing Plaintiffs’ lawsuit, as Plaintiffs’ exclusive remedy is through the Act.
III. 	CONCLUSION
{17} 	Since Castillo’s death arose out of and in the course of employment, we
conclude that the Act provided an exclusive remedy to Plaintiffs. 	We affirm the
district court.
{18} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

TIMOTHY L. GARCIA, Judge

J. MILES HANISEE, Judge

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