A critical threshold issue for workers compensation cases can be whether the claim is for an “accidental injury,” as opposed to the result of intentional misconduct. See NMSA § 52-1-28. This is significant because where an injury is not accidental, it falls outside of the scope of workers’ compensation law, including its exclusivity provisions. See NMSA §§ 52-1-6(E) and 52-1-9. Depending on who was willful--the employer or employee--it can result in the application of ordinary tort remedies, meaning without capped damages, or a complete bar to any sort of recovery at all.
In a recent case, Pearson v. Johnson Controls, 2011-NMCA-034, cert. den., the New Mexico Court of Appeals has held “that the standard of willfulness required to deny workers’ compensation benefits to an employee for self injury is the same as applied to employers’ misconduct under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 NM 272.” See Pearson at ¶ 1.
In the Pearson case, the employer argued and the Workers Comp Administrative Law Judge (“WCJ”) agreed that the employee, a welder with a pre-existing lung disorder called “metal fume fever,” was barred from workers comp benefits because “he recklessly disregarded the risks involved in continued employment as a welder.” See NMSA § 52-3-45 (disallowing injures due to willful self-exposure to agents of occupational disease); compare § 52-1-11 (barring injuries due to intoxication, or willfulness or intention of the worker). The Court of Appeals reversed, citing Delgado and subsequent related case law, which addressed intentional misconduct by the employer, and removal of a claim from the otherwise exclusive workers’ comp scheme.
In Pearson, the employee had been a welder for more than 32 years at the time of the workers compensation injury, in October 2007. Previously, he had been diagnosed with “metal fume fever” in 1998. In the intervening years he had been advised by several medical providers to avoid exposure to welding fumes, that welding exacerbates his preexisting lung condition, and that he should get out of the welding business. The employee did periodically attempt to get of the welding business when his conditioned worsened, but he would eventually return due to economic necessity.
In contrast, in Delgado, the employer “doomed a worker to almost certain death by ordering him to conduct emergency repairs on an iron cauldron threatening to overflow with superheated molten rock.” Pearson at ¶ 16, citing Delgado at ¶¶ 3-5. The Delgado Court concluded a party acts willfully when “(1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonable expected to result in the injury suffered by the worker; (2) the worker or employer expects the injury to occur, or has utterly disregarded the consequences of the intentional act or omission; and (3) the intentional act or omission proximately causes the worker’s injury.” Delgado at ¶¶ 3-5.
In subsequent cases, the New Mexico courts had concluded that a successful claim of willful misconduct requires not only sufficient evidence “meeting each of Delgado’s three elements,” but also evidence that “their opponent acted unconscionably and with ‘a comparable degree of egregiousness as the employer in Delgado.’” Pearson at ¶ 15, citing Morales v. Reynolds, 2004-NMCA-098, ¶¶ 10, 14. Thus, as the Pearson Court notes, Delgado and its progeny present a very “high burden,” and “offer[]such a narrow exception, that” claims resting on the theory of “willful” misconduct “rarely succeed[].” Pearson at ¶¶ 15, 19.
Looking through the Delgado lens, the Court in Pearson noted that here the worker did not subjectively understand any medical provider to be directly ordering him to desist work as a welder and, although his flare ups were roughly correlated to his welding work, he did not always have a flare up when welding. Indeed, he “was not definitively ordered to stop welding by his doctors until February 2003,” after the injury at issue. Pearson at ¶ 8. Based on these facts and prior precedent, the Court concluded “that Worker’s conduct, although inarguably unwise and almost certainly negligent, is not the type of egregious behavior leading to almost certain injury that Delgado seeks to exclude from workers’ compensation.” Pearson at ¶ 19.
Pearson teaches us that the Delgado standard will continue to present a very high burden; claims alleging willfulness will rarely be successful; and these tenets work both ways to cover intentional conduct by both employers and employees.
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