N.M. Stat. § 52-1-28 (2026)

A. Claims for workers' compensation shall be allowed only:

      (1)     when the worker has sustained an accidental injury arising out of and in
the course of his employment;

       (2)    when the accident was reasonably incident to his employment; and

       (3)    when the disability is a natural and direct result of the accident.

   B. In all cases where the employer or his insurance carrier deny that an alleged
disability is a natural and direct result of the accident, the worker must establish that
causal connection as a probability by expert testimony of a health care provider, as
defined in Section 52-4-1 NMSA 1978, testifying within the area of his expertise.

History: 1953 Comp., § 59-10-13.3, enacted by Laws 1959, ch. 67, § 7; 1987, ch. 235,
§ 13.

                                      ANNOTATIONS

                         I.      GENERAL CONSIDERATIONS.
Seasonal employment. — Seasonal employment does not include activities which can
be carried on essentially year round, even if the work may be occasionally interrupted
by producers, market fluctuations, or other outside agents. Logging is not seasonal
employment for purposes of the New Mexico Workers' Compensation Act. Murillo v.
Payroll Express, 1995-NMCA-062, 120 N.M. 333, 901 P.2d 751.

Health care provider defined. — The phrase "health care provider" as used by the
legislature is a shorthand expression referring to licensed occupations listed in Section
52-4-1 NMSA 1978 without reference to the requirement of licensure in New Mexico.
The purpose of the 1987 amendment was to expand the admissibility of expert
testimony regarding causation, not restrict it. The reference in this section to Section 52-
4-1 NMSA 1978 can best be explained as the use of a handy list of health care
professionals who treat workers and therefore would be competent to render an opinion
on causation. Coslett v. Third St. Grocery, 1994-NMCA-046, 117 N.M. 727, 876 P.2d
656, cert. denied, 117 N.M. 802, 877 P.2d 1105.

For there to be workmen's (workers') compensation award, there must be
disability and the compensation payable is measured in terms of disability. McCleskey
v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M.
317, 454 P.2d 974.

Fundamental theory favors recovery rather than denial. — When the reason or
cause for the accident is not explained, and it occurred during the time decedent was at
work, the fundamental theory underlying the workmen's (workers') compensation law
favors recovery rather than denial of compensation. Ensley v. Grace, 1966-NMSC-181,
76 N.M. 691, 417 P.2d 885.

Burden is on plaintiff to establish existence of compensable claim and that, the
evidence being in conflict, it was the necessary duty of the trial court to resolve the
conflict. Tafoya v. Kermac Nuclear Fuels Corp., 1962-NMSC-161, 71 N.M. 157, 376
P.2d 576.

Burden of proof of employability. — The claimant has the duty of showing that he
was disabled from doing any work for which he was fitted by age, education, training
and previous experience; however, after plaintiff has introduced evidence as to his age,
education, training and general physical and mental capacity, the burden of coming
forward is on the defendant as it is much easier for the defendant to prove the
employability of the plaintiff for a particular job than for plaintiff to try to prove the
universal negative of not being employable at any work. Brown v. Safeway Stores, Inc.,
1970-NMCA-132, 82 N.M. 424, 483 P.2d 305.

Order denying objection to change not appealable. — A judge's order denying a
request, or an objection, to change health care provider is not final and appealable
when a claim for benefits is pending before the workers compensation administration.
Kellewood v. BHP Minerals Int'l, 1993-NMCA-148, 116 N.M. 678, 866 P.2d 406.
Elements to prove claim. — This section sets forth the elements necessary to prove a
compensable claim. Murphy v. Strata Prod. Co., 2006-NMCA-008, 138 N.M. 809, 126
P.3d 1173.

Test for recovery under workmen's (workers') compensation statute relates to the
workman's (worker's) ability "to obtain and retain gainful employment," considering his
age, education, training, general mental and physical capacity and his adaptability.
Snead v. Adams Constr. Co., 1963-NMSC-075, 72 N.M. 94, 380 P.2d 836.

Primary test for disability is capacity to perform work. Adams v. Loffland Bros.
Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466; Bufalino v. Safeway Stores,
Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Accidental injury while employed, expenses due to problems exacerbated by
injury, fulfills prerequisites. — Findings that plaintiff: (1) suffered an accidental injury
while in the course and scope of his employment while inventorying and numbering air
conditioners; and (2) incurred medical expenses due to symptomatic problems with his
lower back exacerbated by the injury included the necessary prerequisites for coverage
under the workmen's (workers') compensation act. DiMatteo v. County of Dona Ana,
1985-NMCA-099, 104 N.M. 599, 725 P.2d 575 (Ct. App. 1986).

Determination of degree of disability is question of fact for the fact finder and if
there is substantial evidence in the record to support a finding, the appellate court is
bound thereby. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475
P.2d 466.

Measure of disability under workmen's (workers') compensation statute is the
relationship between the workman's (worker's) ability to do work prior to the injury, and
such ability following the injury. Gurule v. Albuquerque-Bernalillo Cnty. Economic
Opportunity Bd., 1972-NMCA-094, 84 N.M. 196, 500 P.2d 1319, cert. denied, 84 N.M.
180, 500 P.2d 1303.

Award is based upon permanent injuries, not the outward manifestation, or lack
thereof, of the symptoms resulting from the injuries. Having found total disability, it was
not necessary for the trial court to make a negative finding with respect to the symptoms
alone. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440 P.2d 291.

"Permanent damage to the heart" is not a "disability" unless it adversely affects a
workman's (worker's) capacity to work. If it does, then a workman (worker) suffers a
permanent disability, whether the damage is large or small. Bufalino v. Safeway Stores,
Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Latent injuries are recognized under this section. Chaffins v. Jelco, Inc., 1971-
NMCA-071, 82 N.M. 666, 486 P.2d 75, cert. quashed, 83 N.M. 22, 487 P.2d 1092.
Worker's knowledge of impairment for purposes of statute of limitations. — The
fact that a worker is restricted to proving his claim by the testimony of a health care
provider agreed upon by the parties or approved by the workers' compensation judge,
and that the provider is directed to use American medical association publications in
establishing the degree of disability, does not limit the running of the statute of
limitations to only those situations when a health care provider has actually informed the
worker that he has sustained a permanent impairment; thus, resolution of when a
worker was deemed to have sustained impairment for purposes of running of the
limitations period constituted a factual issue unsuitable for resolution by summary
judgment. Montoya v. Kirk-Mayer, Inc., 1995-NMCA-104, 120 N.M. 550, 903 P.2d 861.

Payment of full wages not conclusive as to disability. — Payment of full wages,
whether earned or not, is not conclusive on the question of "disability." Rayburn v. Boys
Super Mkt., Inc., 1964-NMSC-201, 74 N.M. 712, 397 P.2d 953.

If a veterans administration payment is a pension, it cannot be considered to reduce
the amount of workmen's (workers') compensation. Snead v. Adams Constr. Co., 1963-
NMSC-075, 72 N.M. 94, 380 P.2d 836.

Lack of support not conclusive as to dependency. — In determining dependency of
widow and children of deceased claimant, fact that claimant had not supported them in
the years just previous to his death is not conclusive on question of dependency when
there is some payment to dependents from his attached funds and deceased intended
to begin supporting his dependents in full in near future. Houston v. Lovington Storage
Co., 1965-NMSC-030, 75 N.M. 60, 400 P.2d 476.

It is not necessary that essential facts to a recovery be proved by direct evidence;
they may be established by reasonable inferences drawn from proven facts. Where
there is substantial evidence that the death of an employee results from an accident and
the accident occurs during his hours of work, at a place where his duties require him to
be, or where he might properly have been in the performance of such duties, the trier of
the facts may reasonably conclude therefrom, as a natural inference, that the accident
arises out of and in the course of the employment, and that the injury was reasonably
incident to the employment. Houston v. Lovington Storage Co., 1965-NMSC-030, 75
N.M. 60, 400 P.2d 476.

When evidence on disability is primarily or substantially all documentary, the
appellate court is as well positioned as the trial court to consider and weigh the
evidence and determine the facts disclosed thereby; however, the trial court's finding is
to be included in the weighing and review. Martinez v. Universal Constructors, Inc.,
1971-NMCA-160, 83 N.M. 283, 491 P.2d 171.

Where doctor's testimony was presented to trial court by depositions, the
appellate court was still bound by trial court's findings as to that testimony, if supported
by substantial evidence. Brannon v. Well Units, Inc., 1970-NMCA-130, 82 N.M. 253,
479 P.2d 533.
Trial court can properly consider deposition testimony of treating physician.
Martinez v. Universal Constructors, Inc., 1971-NMCA-160, 83 N.M. 283, 491 P.2d 171.

Trial court to determine credibility and weight of witnesses. — There is a conflict in
the evidence concerning plaintiff's present disability. The credibility of the witnesses and
the weight to be given their testimony are to be determined by the trial court and not by
the appellate court. Mares v. City of Clovis, 1968-NMCA-102, 79 N.M. 759, 449 P.2d
667.

Although plaintiff testified that he suffered an accidental injury while at work on a certain
date, there is evidence which contradicts plaintiff. It was for the trial court to resolve the
conflict. Montoya v. Leavell-Brennand Constr. Co., 1970-NMCA-077, 81 N.M. 616, 471
P.2d 186.

It was for the trial court, as the trier of the facts, and not for this court, to determine the
credibility of the witnesses, the weight to be given their respective testimonies, and
wherein the truth lay, and that the witnesses upon whose credibility the trial court was
required to pass were medical experts, and that the differences and conflicts to be
resolved arose out of their medical opinions as to the causes and nature of plaintiff's
disabling condition, does not alter the rule. Wood v. Citizens Std. Life Ins. Co., 1971-
NMSC-011, 82 N.M. 271, 480 P.2d 161.

It was not the duty of the appellate court to weigh the testimony of the doctors, but
rather, the duty of the trier of fact; and although there was testimony of the medical
experts from which the trial court might have found other than it did, nevertheless, it was
for the trial court, as the fact finder, to evaluate all the evidence and determine where
the truth lay. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d
493, cert. denied, 90 N.M. 254, 561 P.2d 1347.

Trier of facts to determine weight and conflicts of medical witnesses. — Once a
medical witness has qualified to give an expert medical opinion upon a particular issue,
the weight, if any, to be given his opinion on this issue, and the resolution of conflicts
between his opinion and the opinions of other medical experts on the issue, are for the
trier of the facts. Wood v. Citizens Std. Life Ins. Co., 1971-NMSC-011, 82 N.M. 271, 480
P.2d 161.

Where two medical experts express contrary opinions on causation, a conflict arises
and such conflict must be resolved by the trier of facts. Chaffins v. Jelco, Inc., 1971-
NMCA-071, 82 N.M. 666, 486 P.2d 75, cert. quashed, 83 N.M. 22, 487 P.2d 1092.

Where testimony of medical experts was conflicting on cause of injury the supreme
court of New Mexico held it was within the province of the trier of fact to evaluate and
choose between the conflicting views of the experts on this question. Irvin v. Rainbo
Baking Co., 1966-NMSC-075, 76 N.M. 213, 413 P.2d 693.
The testimony of a physician is opinion testimony and as such is not conclusive, and the
trier of the facts may accept, reject or give such weight only as it deems such evidence
is entitled to have, even though uncontradicted. Where medical testimony is conflicting
the court's determination will be affirmed. Renfro v. San Juan Hosp., 1965-NMSC-067,
75 N.M. 235, 403 P.2d 681; Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d
212.

The mere production of one or more experts who testify to the causal connection does
not satisfy the burden imposed upon the workman (worker) by the section if there is
other expert testimony expressing a contrary opinion, as when such conflict in the proof
arises, the trier of the facts must resolve the disagreement and determine the true facts.
Gallegos v. Kennedy, 1968-NMSC-170, 79 N.M. 590, 446 P.2d 642.

Compensation not payable until and unless a work-related accident produces an
injury which becomes disabling. Casias v. Zia Co., 1979-NMCA-068, 93 N.M. 78, 596
P.2d 521, cert. denied, 93 N.M. 8, 595 P.2d 1203 .

Determination of amount of compensation. — If the court finds that a workman's
(workman's) injury resulted in a prejudgment terminated disability, he is paid "the
amount then due." If a workman's (worker's) injury resulted in a post-judgment disability,
he is also paid compensation "at regular intervals during the continuance of his
disability." Sena v. Gardner Bridge Co., 1979-NMCA-042, 93 N.M. 358, 600 P.2d 304,
cert. denied, 92 N.M. 675, 593 P.2d 1078.

Voluntary payment of benefits as evidence. — Admission by an employer that it
voluntarily paid an employee workmen's (workers') compensation benefits is competent
evidence of every relevant fact necessary under this section to allow the employee
recovery of benefits after the voluntary payments cease. Medrano v. Ray Willis Constr.
Co., 1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

Failure to find positive evidence not fatal to claim. — If there are any facts and
circumstances sufficient to raise a reasonable inference that the employee met an
accident on the job, the failure to find positive evidence is not fatal to the claim. Sena v.
Continental Cas. Co., 1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98
N.M. 336, 648 P.2d 794.

Expert testimony not limited to specialists. — Subsection B does not limit expert
testimony on causation to a specialist in the area of injury. Turner v. N.M. State Hwy.
Dep't, 1982-NMCA-097, 98 N.M. 256, 648 P.2d 8, cert. denied, 98 N.M. 336, 648 P.2d
794 (decided under prior law).

Expert medical testimony. — A psychologist cannot render "expert medical testimony"
under Subsection B of this statute. Fierro v. Stanley's Hardware, 1985-NMCA-085, 104
N.M. 401, 722 P.2d 652, rev'd on other grounds, 1986-NMSC-022, 104 N.M. 50, 716
P.2d 241.
Use of the phrase "expert medical testimony" in Subsection B does not limit the
qualification of expert testimony to licensed physicians. Madrid v. University of Cal.,
1987-NMSC-022, 105 N.M. 715, 737 P.2d 74.

Licensed psychologist was qualified to provide expert medical testimony of causation of
plaintiff's claimed mental condition. Madrid v. University of Cal., 1987-NMSC-022, 105
N.M. 715, 737 P.2d 74.

A chiropractor may offer expert medical testimony regarding causation. Vallejos v. KNC,
Inc., 1987-NMSC-030, 105 N.M. 613, 735 P.2d 530.

Standard for admitting expert testimony established by Daubert v. Merrel Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), as adopted in New Mexico by State v.
Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192, does not apply to the
testimony of a health care provider pursuant to Subsection B of this section or Section
52-3-32 NMSA 1978. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134
N.M. 421, 77 P.3d 1014.

The "expert" testimony required by Subsection B of this section refers to testimony
based on the treating health care provider’s training, experience and familiarity. Banks
v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134 N.M. 421, 77 P.3d 1014.

Section 11.4.4.12(O) NMAC (now 11.4.4.12 P), when read together with Subsection B
of this section, necessarily implies a different evidentiary principle than that of
Daubert/Alberico. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, 134
N.M. 421, 77 P.3d 1014.

A doctor's opinion testimony was substantial evidence for finding of 80% partial
permanent disability. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M. 99, 440
P.2d 291.

Conflict between treating physician and specialist. — If treating physician's
testimony was sufficient to support a finding of no disability, it was the trial court's
function to resolve the conflict between treating physician's testimony and that of
specialist. Martinez v. Universal Constructors, Inc., 1971-NMCA-160, 83 N.M. 283, 491
P.2d 171.

Where expert witness had no knowledge of pertinent information. — Where
pertinent information existed about which expert witness apparently had no knowledge,
his opinion cannot serve as the basis for compliance with this section. Niederstadt v.
Ancho Rico Consol. Mines, 1975-NMCA-059, 88 N.M. 48, 536 P.2d 1104, cert. denied,
88 N.M. 29, 536 P.2d 1085.

Medical expert may properly express his opinion in percentages as to the
impairment of the physical functions of a claimant. Hales v. Van Cleave, 1967-NMCA-
006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657.
Expert medical testimony not required for intoxication defense by employer. —
This section (proof of compensable claims) does not require an employer seeking to
establish that a worker's accident was caused by his or her intoxication pursuant to 52-
1-11 NMSA 1978 to prove such a causal connection through expert testimony. Estate of
Mitchum v. Triple S Trucking, 1991-NMCA-118, 113 N.M. 85, 823 P.2d 327, cert.
denied, 113 N.M. 16, 820 P.2d 1330.

Totally disabled notwithstanding the medical opinion. — The claimant is wholly
unable to perform the usual tasks of a common laborer which was what he was doing
when he was injured, and he is entirely unable to perform any work for which he is
qualified. This is true, notwithstanding the doctor's statement that claimant is "20
percent permanently disabled, no matter what he does." Although this testimony may be
accurate "medically," under the section if he can no longer do the work he was doing
when injured, and cannot do the only work for which he is qualified, he is "legally" totally
disabled. Quintana v. Trotz Constr. Co., 1968-NMSC-037, 79 N.M. 109, 440 P.2d 301,
overruled on other grounds by American Tank & Steel Corp. v. Thompson, 1977-
NMSC-052, 90 N.M. 513, 565 P.2d 1030.

Work-related stress. — The burden was on worker to provide medical evidence
showing that his heart attack and death was a medically probable result of work-related
stress. Grine v. Peabody Nat. Res., 2005-NMCA-075, 137 N.M. 649, 114 P.3d 329,
rev'd on other grounds, 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190.

Unable to perform work due to anxiety reaction. — That the outward manifestations
of the anxiety reaction could be controlled by medication does not alter the fact that
plaintiff still was unable to perform any type of work such as he had formerly been able
to do, or which, by reason of his age, mental condition, training and experience, he
would have been able to do. Roybal v. County of Santa Fe, 1968-NMSC-073, 79 N.M.
99, 440 P.2d 291.

If compensation or traumatic neurosis is present as a result of a work-connected
injury, and claimant's earning powers are thereby adversely affected, there is no reason
why the same is not compensable. Ross v. Sayers Well Servicing Co., 1966-NMSC-
099, 76 N.M. 321, 414 P.2d 679.

Finding of disability as ultimate fact. — A finding that a workman (worker), to a
stated percentage extent, is partially and permanently disabled is a finding of an
ultimate fact. McClesky v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d
849, cert. denied, 80 N.M. 317, 454 P.2d 974.

The failure of the court to adopt an express finding on the issue of causation and
plaintiff's mental condition does not require denial of an award of medical benefits for
treatment of depression where other findings adopted by the court are sufficient to
support the court's ultimate findings on this issue. Montney v. State ex rel. State Hwy.
Dep't, 1989-NMCA-002, 108 N.M. 326, 772 P.2d 360, cert. denied, 108 N.M. 197, 769
P.2d 731.
Trial court's finding affirmed if substantial evidence. — Trial court's finding that
plaintiff did not sustain an accidental injury arising out of and in the course of his
employment must be affirmed if there is substantial evidence to support the finding on
this point and supreme court will not weigh the evidence. Jacquez v. McKinney, 1968-
NMSC-006, 78 N.M. 641, 436 P.2d 501.

Finding of disability contrary to evidence. — Where the evidence shows the
claimant was substantially and continuously employed in comparable work, except for
short intervals, the verdict of the trial jury finding claimant totally and permanently
disabled for 115 weeks is contrary to the undisputed evidence in the case, and should
be vacated and set aside. Baca v. Swift & Co., 1964-NMSC-104, 74 N.M. 211, 392 P.2d
407.

Failure of trial court to find concerning plaintiff's ability to perform usual tasks of
work performed when injured was not a failure to find an ultimate fact. McCleskey v.
N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M.
317, 454 P.2d 974.

Failure to find fact regarded as finding against party having burden. — Even if
omissions were made, it is the rule in this jurisdiction that a failure by the trial court to
find a material fact must be regarded as a finding against the party having the burden of
establishing such fact. Baker v. Shufflebarger & Assocs., Inc., 1966-NMSC-189, 77
N.M. 50, 419 P.2d 250.

Scope of review on appeal. — If the necessary medical evidence is produced, the
degree of disability is a question of fact for the fact-finder; and if there is substantial
evidence in the record to support a disability finding, it is binding on a reviewing court.
Smith v. Trailways Bus Sys., 1981-NMCA-041, 96 N.M. 79, 628 P.2d 324, cert. denied,
96 N.M. 116, 628 P.2d 686.

The appellate court, on appeal, in reviewing workmen's (workers') compensation cases
considers only evidence and inferences that may be reasonably drawn therefrom in the
light most favorable to support the findings of the trial court and does not weigh
conflicting evidence or the credibility of the witnesses. Turner v. N.M. State Hwy. Dep't,
1982-NMCA-097, 98 N.M. 256, 648 P.2d 8, cert. denied, 98 N.M. 336, 648 P.2d 794.

Where conflicting medical testimony is presented as to whether a medical probability of
causal connection existed between myocardial infarction and the work being performed,
the trial court's determination will be affirmed. Bufalino v. Safeway Stores, Inc., 1982-
NMCA-127, 98 N.M. 560, 650 P.2d 844.

The question on appeal is not whether there is evidence to support an alternative result
but, rather, whether the trial court's result is supported by substantial evidence. Bagwell
v. Shady Grove Truck Stop, 1986-NMCA-013, 104 N.M. 14, 715 P.2d 462.

                  II.     ACCIDENT IN COURSE OF EMPLOYMENT.
                                  A.     IN GENERAL.

Claimant seeking recovery under workmen's (workers') compensation was
required to prove a compensable claim by showing an accidental injury arising out of
and in the course of employment that was reasonably incident to his employment, and
was required to establish causal connection as a medical probability by expert medical
testimony. Geeslin v. Goodno, Inc., 1967-NMSC-025, 77 N.M. 408, 423 P.2d 603.

The burden rests on a plaintiff in a case of this kind to show that a decedent's death was
proximately caused by an accident arising out of and in the course of his employment.
Campbell v. Schwers-Campbell, Inc., 1955-NMSC-056, 59 N.M. 385, 285 P.2d 497
(decided under former law).

To recover workmen's (workers') compensation, the claimant must have sustained an
accidental injury arising out of and in the course of his employment. Montoya v. Leavell-
Brennand Constr. Co., 1970-NMCA-077, 81 N.M. 616, 471 P.2d 186.

Under Workmen's (Workers') Compensation Act, recovery is allowed only "when the
workman (worker) has sustained an accidental injury arising out of, and in the course of
his employment." In the absence of such showing, there can be no recovery. Jacquez v.
McKinney, 1968-NMSC-006, 78 N.M. 641, 436 P.2d 501.

Claims under the Workmen's (Workers') Compensation Act are allowed only when they
involve job-related injuries. Holliday v. Talk of Town, Inc., 1982-NMCA-103, 98 N.M.
354, 648 P.2d 812, cert. denied, 98 N.M. 336, 648 P.2d 794.

Controlling factor whether general servant of employer or special servant of
another. — In the case of Weese v. Stoddard, 1956-NMSC-117, 63 N.M. 20, 312 P.2d
545 (1957), in considering the test for determining whether a general servant of one
employer can become the special or particular servant of another, the court said: "The
controlling factor in determining this question is: Whose work is being performed and
who controlled and directed the agent in his work?" Brown v. Pot Creek Logging &
Lumber Co., 1963-NMSC-172, 73 N.M. 178, 386 P.2d 602.

Question of law where facts undisputed. — Where the historical facts of the case are
undisputed, the question whether the accident arose out of and in the course of the
employment is a question of law. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-
NMSC-008, 89 N.M. 60, 547 P.2d 65; Losinski v. Corcoran, Barkoff & Stagnone, P.A.,
1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514;
Lujan v. Payroll Express, Inc., 1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, cert.
denied, 114 N.M. 62, 834 P.2d 939.

Special employee of another while working off-duty from employer. — Where
claimant was regularly employed by the defendant corporation, but the particular work
or employment giving rise to injury was undertaken on off-duty hours from the regular
job, he was doing work for another corporation away from the premises of his regular
employer and was so engaged when his injury occurred, then claimant was a special
employee of the other corporation. Brown v. Pot Creek Logging & Lumber Co., 1963-
NMSC-172, 73 N.M. 178, 386 P.2d 602.

General rule is that employment begins when employee reaches place of work
and ends after he leaves his place of work. Barton v. Las Cositas, 1984-NMCA-136,
102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Liability of earlier employer for injury's aggravation releases subsequent
employer liability. — A disabled employee is not required to seek relief from
subsequent employer for aggravation of an injury, where evidence showed that such
aggravation resulted from a prior injury for which an earlier employer was liable, and
from which the employee had never recovered. Perea v. Gorby, 1980-NMCA-048, 94
N.M. 325, 610 P.2d 212.

Judgment entered against defendant in face of plaintiff's unchallenged findings.
— Where unchallenged findings of fact established that at the time of trial plaintiff was
totally disabled and unable to obtain and retain gainful employment, and that this
disability began and had continued without interruption since plaintiff's injury in the
course of his employment by defendant, judgment must be entered against defendant
for total disability. Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212.

Employer's voluntary payment of employee's benefits admission of accident. —
By voluntarily paying an injured employee workmen's (workers') compensation benefits,
the employer admits that the employee's disability was a natural and direct result of an
accident arising out of and in the course of his employment, and relieves plaintiff of the
burden of establishing any causal connection as a medical probability by expert medical
testimony. Perea v. Gorby, 1980-NMCA-048, 94 N.M. 325, 610 P.2d 212, but see
Romero v. S.S. Kresge Co., 1981-NMCA-001, 95 N.M. 484, 623 P.2d 998, cert. denied,
95 N.M. 593, 624 P.2d 535, overruled on other grounds by Dupper v. Liberty Mut. Ins.
Co., 1987-NMSC-007, 105 N.M. 503, 734 P.2d 743; Medrano v. Ray Willis Constr. Co.,
1981-NMCA-096, 96 N.M. 643, 633 P.2d 1241.

Voluntary payment of compensation benefits is merely competent evidence as to
any issue in a workmen's (workers') compensation suit and does not create any
presumptions or shifts in the original burden. Romero v. S.S. Kresge Co., 1981-NMCA-
001, 95 N.M. 484, 623 P.2d 998, cert. denied, 95 N.M. 593, 624 P.2d 535, overruled on
other grounds by Dupper v. Liberty Mut. Ins. Co., 1987-NMSC-007, 105 N.M. 503, 734
P.2d 743, see Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643, 633
P.2d 1241.

Where the sufficiency of the evidence to support the findings that claimant was
injured at a time when he was not acting within the scope of his employment, and the
injury occurred after he had left his employment, is not directly attacked, they are,
therefore, binding upon this court. McAfoos v. Borden Implement Co., 1965-NMSC-028,
75 N.M. 50, 400 P.2d 470.
Self-directed physical fitness. — A worker did not sustain an injury arising in the
course of his employment when he suffered a heart attack while engaged in a self-
directed fitness program, although physical fitness was a prerequisite to attending the
law enforcement academy. Meeks v. Eddy Cnty. Sheriff's Dep't, 1994-NMCA-134, 118
N.M. 643, 884 P.2d 534, cert. denied, 118 N.M. 731, 885 P.2d 1325.

                               B.     ACCIDENTAL INJURY.

"Accidental injury" or "accident" is an unlooked for mishap, or untoward event which
is not expected or designed. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M.
120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970); Herndon v.
Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d 470, rev'd on other
grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434; Hernandez v. Home Educ.
Livelihood Program, Inc., 1982-NMCA-079, 98 N.M. 125, 645 P.2d 1381, cert. denied,
98 N.M. 336, 648 P.2d 794 (specially concurring opinion); Bufalino v. Safeway Stores,
Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Unnecessary that workman (worker) be subjected to unusual or extraordinary
condition or hazard not usual to his employment for an injury to be an accidental injury
under the compensation act. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M.
120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970).

If strain of claimant's usual exertions causes collapse from back weakness, injury
is accidental. Lyon v. Catron Cnty. Comm'rs, 1969-NMCA-108, 81 N.M. 120, 464 P.2d
410, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970).

Malfunction of body as accidental injury. — A malfunction of the body itself, such as
a fracture of the disc or tearing a ligament or blood vessel, caused or accelerated by
doing work required or expected in employment is an accidental injury within the
meaning and intent of the compensation act. Lyon v. Catron Cnty. Comm'rs, 1969-
NMCA-108, 81 N.M. 120, 464 P.2d 410, cert. denied, 81 N.M. 140, 464 P.2d 559
(1970); Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d
470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434, Tom
Growney Equip. Co. v. Jonett, 2005-NMSC-015, 137 N.M. 497, 113 P.3d 320.

An internal malfunction of the body caused by on-the-job activity is a compensable
injury under the Workmen's (Workers') Compensation Act. Powers v. Riccobene
Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert. denied, 99
N.M. 148, 655 P.2d 160.

Stress-induced heart attack. — There was abundant competent evidence to support
the trial court's finding that job-related stress, i.e., stress as it related to a firefighter's
job, induced the firefighter's heart attack, and that the heart attack caused his death,
even though the deceased died in his sleep, because he was nonetheless on duty at
the station house at the time. Oliver v. City of Albuquerque, 1987-NMSC-096, 106 N.M.
350, 742 P.2d 1055.
Physicians' testimony supported a finding that claimant's death was causally connected
to employment-related stress, where claimant, a hospital nurse, had died as a result of
a heart attack suffered at work. Herman v. Miners' Hosp., 1991-NMSC-021, 111 N.M.
550, 807 P.2d 734.

The physician's testimony was sufficient to establish that the decedent's death was
caused by a myocardial infarction related to his work. Mieras v. Dyncorp, 1996-NMCA-
095, 122 N.M. 401, 925 P.2d 518, cert. denied, 122 N.M. 279, 923 P.2d 1164.

Opinion of worker's treating physician, who treated over 10,000 heart patients in his 30-
year career; who treated worker for several months; who was aware of worker's pre-
existing conditions, his work schedule, mandatory overtime and confrontation with
supervisor; and who believed that worker, who did not report any stress from his family
situation, had a happy marriage, a supportive wife and a good family and whose
testimony was uncontradicted, that worker's work-related stress contributed to his heart
attack was substantial evidence of a causal connection between the worker's heart
attack and his work-related stress. Grine v. Peabody Natural Res., 2006-NMSC-031,
140 N.M. 30, 139 P.3d 90.

Stress of labor aggravating preexisting infirmity as accident. — If the stress of
labor aggravates or accelerates the development of a preexisting infirmity causing an
internal breakdown of that part of the structure, a personal injury by accident does
occur. Herndon v. Albuquerque Pub. Schs., 1978-NMCA-072, 92 N.M. 635, 593 P.2d
470, rev'd on other grounds, 1978-NMSC-090, 92 N.M. 287, 587 P.2d 434; Powers v.
Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d 291, cert.
denied, 99 N.M. 148, 655 P.2d 160.

Mental breakdown resulting from termination not compensable. — Employee who
suffered a mental breakdown from being terminated from defendant's employ may not
recover workmen's (workers') compensation benefits because claimant did not suffer an
accidental injury arising out of his employment since the risk that the employment might
be terminated was not a risk incident to the performance of claimant's work, and was
not peculiar to claimant's employment. Kern v. Ideal Basic Indus., 1984-NMCA-099, 101
N.M. 801, 689 P.2d 1272, cert. denied, 102 N.M. 7, 690 P.2d 450.

Psychological disability caused by stress arising out of and in the course of
employment is compensable. This presupposes the existence of an actual job condition
which causes the stress (actual stress), rather than a perceived condition that does not
exist (imagined stress). Candelaria v. General Elec. Co., 1986-NMCA-016, 105 N.M.
167, 730 P.2d 470, cert. quashed, 105 N.M. 111, 729 P.2d 1365; Lopez v. Smith's
Mgmt. Corp., 1986-NMCA-054, 106 N.M. 416, 744 P.2d 544, cert. quashed, 106 N.M.
405, 744 P.2d 180 (1987).

Rupture. — Claimant's view that he had suffered an injury while lubricating a machine
was upheld where there was testimony that he did not complain of feeling any pain
earlier in the day and a physician testified that claimant's rupture was caused by leaning
over and reaching with his lubricating tool in hand. Beyale v. Arizona Pub. Serv. Co.,
1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366, cert. denied, 105 N.M. 111, 729 P.2d
1365.

A gradual, noise-induced hearing loss is an accidental injury compensable under this
section and is not an occupational disease. Cisneros v. Molycorp, Inc., 1988-NMCA-
080, 107 N.M. 788, 765 P.2d 761, cert. denied, 107 N.M. 785, 765 P.2d 758.

Disability, resulting from gun accidentally discharged while cleaning,
compensable. — Claimant's disability resulting from a self-inflicted gunshot wound was
compensable, where his employer failed to rebut the presumption against suicide and
there was sufficient evidence to support a finding that the gun accidentally discharged
while claimant was cleaning it, for sometimes use on the job. Neel v. State Distribs.,
Inc., 1987-NMCA-103, 105 N.M. 359, 732 P.2d 1382, cert. denied, 105 N.M. 358, 732
P.2d 1381.

Shooting of deputy sheriff as accidental injury. — Uncontradicted evidence that
plaintiff's decedent, a deputy sheriff, was found dead of shotgun wounds seated in the
driver's seat of his patrol car, and that the shotgun which did not have a trigger guard
was sitting over the hump of the transmission on the floor, established an accidental
injury arising out of deputy's employment. Thigpen v. County of Valencia, 1976-NMCA-
049, 89 N.M. 299, 551 P.2d 989, cert. denied, 90 N.M. 7, 558 P.2d 619.

                         C.     COURSE OF EMPLOYMENT.

Factors must coexist. — "Course of employment," as used in Subsection A, refers to
the time, place and circumstances under which the injury occurred: "arise out of," as
used in Subsection A, relates to the cause of the injury. Both of these factors must
coexist; one without the other is not enough. Gutierrez v. Artesia Pub. Schs., 1978-
NMCA-081, 92 N.M. 112, 583 P.2d 476.

"Course of employment" refers to the time, place and circumstances under which the
injury occurred, and is synonymous with the term "while at work." Thigpen v. County of
Valencia, 1976-NMCA-049, 89 N.M. 299, 551 P.2d 989, cert. denied, 90 N.M. 7, 558
P.2d 619.

Whether an injury occurs in the course of employment relates to the time, place and
circumstances under which the accident takes place. Sena v. Continental Cas. Co.,
1982-NMCA-060, 97 N.M. 753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794;
Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied,
102 N.M. 293, 694 P.2d 1358 (1985).

The words "in the course of (his) employment" relate to the time, place and
circumstances under which the accident takes place. An accident arises in the course of
the employment when it occurs within the period of the employment at a place where
the employee reasonably may be in the performance of his duties and while he is
fulfilling those duties or engaged in doing something incidental thereto. Frederick v.
Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438.

Injury is said to arise in the course of employment when it takes place within the
period of the employment, at a place where the employee reasonably may be, and while
he is fulfilling his duties or engaged in doing something incidental thereto. Edens v. N.M.
Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.

Course of employment as finding of fact. — Where trial court simply stated that on
the date of a claimed accident, the plaintiff did not incur an accident or suffer an injury
arising out of and in the course of his employment, such finding was not a conclusion of
law but a proper ultimate finding of fact, and claim that trial court failed to make findings
of fact was without merit. Bell v. Kenneth P. Thompson Co., 1966-NMSC-117, 76 N.M.
420, 415 P.2d 546.

In workman's (worker's) compensation, ultimate facts to be determined by trial
court as a basis for the conclusion as to whether the claim is a compensable one are
whether an injury sustained by a workman (worker) arose out of and in the course of his
employment. Brundage v. K.L. House Constr. Co., 1964-NMSC-243, 74 N.M. 613, 396
P.2d 731.

Conclusion of law freely reviewable. — The conclusion of law that the accident arose
out of the course of employment is freely reviewable. Losinski v. Corcoran, Barkoff &
Stagnone, P.A., 1981-NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483,
641 P.2d 514.

Error where record does not rebut presumption of employment. — Where claimant
lost her life while engaged in her employment as a result of being shot by her co-
employee for unexplained reasons, and, as the evidence of record in no way serves to
rebut the presumption that death arose out of her employment, the trial court erred in
finding that death did not arise out of the employment. Ensley v. Grace, 1966-NMSC-
181, 76 N.M. 691, 417 P.2d 885.

Where employer consented to practice as within employment. — Uncontradicted
proof is established that plaintiff's deceased did not depart from his employment in
watering his horses while on call during his shift because his employer knew and
consented to this practice; he was performing the duties of his employment. Thigpen v.
County of Valencia, 1976-NMCA-049, 89 N.M. 299, 551 P.2d 989, cert. denied, 90 N.M.
7, 558 P.2d 619.

Automotive mechanic's injury, sustained while working on his own vehicle after hours in
his employer's garage was in the course of his employment, where there was sufficient
evidence to find that his employer benefitted from his presence on the premises. Evans
v. Valley Diesel, 1991-NMSC-027, 111 N.M. 556, 807 P.2d 740.
Injury to employee living at job site. — The bunkhouse rule states that if an
employee is required to live on the employer's premises, an injury suffered by the
employee while reasonably using the premises is considered as occurring in the course
of employment, even if the injury occurs during an employee's leisure time. Lujan v.
Payroll Express, Inc., 1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, cert. denied, 114
N.M. 62, 834 P.2d 939.

Claimant was not performing service for employer where she intended to give her
supervisor a ride home. McDonald v. Artesia Gen. Hosp., 1963-NMSC-199, 73 N.M.
188, 386 P.2d 708, overruled on other grounds by Dupper v. Liberty Mut. Ins. Co.,
1987-NMSC-007, 105 N.M. 503, 734 P.2d 743.

Not acting in course of employment. — Where decedent was not fulfilling the duties
of his employment or engaged in doing something incidental thereto, he was not acting
in the course of his employment. Gutierrez v. Artesia Pub. Schs., 1978-NMCA-081, 92
N.M. 112, 583 P.2d 476.

Trip to or from doctor's office. — Normally, a trip to or from a doctor's office is only
compensable under the Workmen's (Workers') Compensation Act if the injury to be
treated was work-related and compensable under the act. Barton v. Las Cositas, 1984-
NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358
(1985).

Salesman on plane trip awarded for sales achievement was not in course of
employment where he was engaged in a noncompulsory social activity and was not
fulfilling any duties of his employment and was not engaged in something incidental to
his duties during the flight. Beckham v. Estate of Brown, 1983-NMCA-051, 100 N.M. 1,
664 P.2d 1014, cert. denied, 100 N.M. 192, 668 P.2d 308.

                       D.    ARISING OUT OF EMPLOYMENT.

For injury to "arise out of" the employment, there must be a showing that the injury
was caused by a risk to which the plaintiff was subjected by his employment. The
employment must contribute something to the hazard of the fall. Compensation has
been denied where the risk was common to the public. Williams v. City of Gallup, 1966-
NMSC-213, 77 N.M. 286, 421 P.2d 804; Gutierrez v. Artesia Pub. Schs., 1978-NMCA-
081, 92 N.M. 112, 583 P.2d 476; Losinski v. Corcoran, Barkoff & Stagnone, P.A., 1981-
NMCA-127, 97 N.M. 79, 636 P.2d 898, cert. denied, 97 N.M. 483, 641 P.2d 514.

A worker's injuries arise out of his employment if the injury is caused by a risk the
worker is subjected to in his employment. Barton v. Las Cositas, 1984-NMCA-136, 102
N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Injuries stemming from sexual harassment. — Plaintiff's claim that the injuries she
suffered due to sexual harassment in the workplace was an injury "arising out of"
employment failed because sexual harassment was not a regular incident of the
employment and the employer had specific policies in place prohibiting sexual
harassment. Cox v. Chino Mines/Phelps Dodge, 1993-NMCA-036, 115 N.M. 335, 850
P.2d 1038.

Where risk incidental to employment. — A risk is incidental to the employment, for
the purposes of Subsection A(2), only where the risk belongs to or is connected with
what an employee must do in fulfilling her contract. Velkovitz v. Penasco Indep. Sch.
Dist., 1980-NMCA-066, 96 N.M. 587, 633 P.2d 695, rev'd on other grounds, 1981-
NMSC-075, 96 N.M. 577, 633 P.2d 685.

To "arise out of" employment, there must have been causal connection between
the employment and the injury so that the injury is reasonably incident to the
employment. Brundage v. K.L. House Constr. Co., 1964-NMSC-243, 74 N.M. 613, 396
P.2d 731.

If an injury can be seen to have followed as a natural incident of work and to have been
contemplated by a reasonable person familiar with the whole situation as a result of the
exposure occasioned by the nature of the employment, then it arises "out of" the
employment. Gutierrez v. Artesia Pub. Sch., 1978-NMCA-081, 92 N.M. 112, 583 P.2d
476.

An injury arises out of the employment when it is caused by a risk to which the worker is
subjected in the employment. Sena v. Continental Cas. Co., 1982-NMCA-060, 97 N.M.
753, 643 P.2d 622, cert. denied, 98 N.M. 336, 648 P.2d 794.

Injury must have origin in risk connected with employment. — The "arising out of"
requirement excludes an injury which cannot fairly be traced to the employment as a
contributing proximate cause; the causative danger must be peculiar to the work, it must
not be independent of the relation of master and servant. After the event it must appear
that the accidental injury had its origin in a risk connected with the employment and to
have flowed from that risk as a rational consequence. McDaniel v. City of Albuquerque,
1982-NMCA-164, 99 N.M. 54, 653 P.2d 885.

Establishing causation. — The fact that the decedent died while at work is insufficient,
without other evidence, to establish that the injury arose out of the employment;
similarly, where the evidence bearing upon the issue of causation is conflicting, the fact
that there was evidence which, if effected by the factfinder, would have permitted it to
reach a different result, does not constitute a basis for reversal. Wilson v. Yellow Freight
Sys., 1992-NMCA-093, 114 N.M. 407, 839 P.2d 151.

Reasonable inferences drawn from proven facts. — Where decedent met her death
by reason of an unexplained assault on her by her co-employee while she was at work
at her usual place of employment, it is not necessary that the essential facts necessary
to a recovery be proved by direct evidence; they may be established by reasonable
inferences drawn from proven facts. Ensley v. Grace, 1966-NMSC-181, 76 N.M. 691,
417 P.2d 885.
Where there is substantial evidence that the death of an employee results from an
accident and the accident occurs during his hours of work, at a place where his duties
require him to be, or where he might properly have been in the performance of such
duties, the trier of the facts may reasonably conclude therefrom, as a natural inference,
that the accident arises out of and in the course of the employment, and that the injury
was reasonably incident to the employment. Ensley v. Grace, 1966-NMSC-181, 76 N.M.
691, 417 P.2d 885.

Natural inference of course of employment. — Where there is substantial evidence
that the death of an employee resulted from accident and that the accident occurred
during his hours of work, at a place where his duties required him to be, or where he
might properly have been in the performance of such duties, the jury or other trier of the
issues of fact may reasonably conclude therefrom, as a natural inference, that the
accident arose out of and in the course of the employment. Sw. Portland Cement Co. v.
Simpson, 135 F.2d 584 (10th Cir. 1943); Campbell v. Schwers-Campbell, Inc., 1955-
NMSC-056, 59 N.M. 385, 285 P.2d 497 (decided under former law).

Presumption that death arose out of employment. — Where trial judge found that
employer failed to rebut the presumption that employee's death by shooting arose out of
his employment, judge, as fact finder, was entitled to presume that employee's death
arose out of his employment but was not required to make this presumption, and upon
weighing the evidence, could properly resolve the issue against employer. Mortgage
Inv. Co. v. Griego, 1989-NMSC-014, 108 N.M. 240, 771 P.2d 173.

Scope of employment is to be determined from directions of employer, and not
from any agreement between the employee and her fellow employees; thus, the fact
that an employee agreed with her fellow employees to form a car pool at a shopping
center before proceeding to a required conference was of no consequence to the scope
of her employment. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89
N.M. 60, 547 P.2d 65.

Denial of compensation where injury due to personal animosity. — Where the trial
court's finding was that the injury in this case was the result of personal animosity,
rather than arising out of the employee's work and there was substantial evidence to
support this finding, appellate court affirmed denial of workmen's (workers')
compensation. Valdez v. Glover Packing Co., 1972-NMCA-032, 83 N.M. 570, 494 P.2d
983.

Horseplay. — A participant in horseplay may recover workers' compensation benefits if
he or she can establish that the activity in which the injury occurred had become a
regular incident of the employment, rather than an isolated act. Woods v. Asplundh Tree
Expert Co., 1992-NMCA-046, 114 N.M. 162, 836 P.2d 81, cert. denied, 113 N.M. 744,
832 P.2d 1223.

In using the course of employment test to determine whether an employee injured
during horseplay should recover, the fact-finder should consider: (1) the extent and
seriousness of the deviation, (2) the completeness of the deviation, (3) the extent to
which the practice of horseplay had become an accepted part of the employment, and
(4) the extent to which the nature of the employment may be expected to include some
such horseplay. Woods v. Asplundh Tree Expert Co., 1992-NMCA-046, 114 N.M. 162,
836 P.2d 81, cert. denied, 113 N.M. 744, 832 P.2d 1223.

Injuries sustained while engaged in horseplay were compensable when the
activity giving rise to the injuries constituted a regular incident of employment. —
Where worker sustained injuries while engaged in horseplay on employer's premises,
the workers' compensation judge did not err in concluding worker's injuries were
compensable, because the injury took place during normal work hours and on
employer's premises, worker and other co-workers had engaged in horseplay on
previous occasions, employer had not counseled worker concerning horseplay any time
prior to the incident, and employer had done nothing else to curtail repeated horseplay
at the detention center. The evidence supports a determination that the activity giving
rise to the injury constituted a regular incident of employment, as opposed to an isolated
act, and any deviation from employment was narrow in scope and neither grave nor
complete. Motes v. Curry Cty. Adult Det. Ctr., 2019-NMCA-022, cert. denied.

Recreational activity on employer's premises. — Where a recreational activity
regularly occurs on the employer's premises, and the employer in essence, established,
promoted, acquiesced in and condoned both the recreational facility and the activities
and, in fact, provided the equipment, an accidental injury resulting therefrom satisfies
both the "arising out of" and "in the course of employment" requirements. Kloer v.
Municipality of Las Vegas, 1987-NMCA-140, 106 N.M. 594, 746 P.2d 1126.

Injury in employee's own vehicle at job site. — Employee who died of carbon
monoxide poisoning while sleeping in a van he had purchased for purposes of camping
at the employer's job site sustained an accidental injury arising out of and in the course
of his employment within the meaning of this section. Lujan v. Payroll Express, Inc.,
1992-NMCA-063, 114 N.M. 257, 837 P.2d 451, cert. denied, 114 N.M. 62, 834 P.2d 939
(decided under former law).

Employee killed while performing other work not in employment. — Where
decedent was employed by employer to clean a shed for client, but was killed while
unloading heavy machinery, work for which he was neither qualified nor employed to
perform, and work that employer did not know about and had not even contemplated,
the fatal accident did not arise out of decedent's employment with employer. Green v.
Manpower, Inc., 1970-NMCA-100, 81 N.M. 788, 474 P.2d 80.

Where city meter reader fell off motor scooter used in his employment, even though
there was evidence that meter reader had been subject to fainting spells, fall off scooter
was held to arise out of meter reader's employment. Williams v. City of Gallup, 1966-
NMSC-213, 77 N.M. 286, 421 P.2d 804.
Employee shot on employer's premises connected with employment. — Where the
mentally disturbed husband was aroused by an act of decedent while he was at work,
and the husband then went to the employer's premises while decedent was there at
work, and shot him, the risk was connected with the employment and the injury arose
out of the employment. Hence, the exclusionary provision of the insurance policy
precludes recovery where policy excludes "injury arising out of, or in the course of, any
employment," and plaintiff is seeking to recover the remaining balance unpaid after
recovery under the workmen's (workers') compensation law. Roskell v. Prudential Ins.
Co. of Am., 529 F.2d 1 (10th Cir. 1976).

Injury while loading car not incident to employment. — Where workman (worker)
during regular working hours was engaged in loading his soiled workclothes into his car
so as to have them cleaned as was required by his employer, and in so doing moved or
jostled a shotgun which was kept in the trunk of his car for personal use so as to inflict a
fatal wound, such accident was not reasonably incident to his employment for purposes
of this section. Ward v. Halliburton Co., 1966-NMSC-124, 76 N.M. 463, 415 P.2d 847.

Murder of employee by third person for reasons personal to third person and not
connected with the employee's employment is a "risk" personal to the employee, and
risks personal to a claimant and unrelated to his employment are universally held
noncompensable. Gutierrez v. Artesia Pub. Schs., 1978-NMCA-081, 92 N.M. 112, 583
P.2d 476.

Claimant must prove labor caused or accelerated physical malfunction. — It was
not necessary for claimant to prove that his disc ruptured while he was working, as long
as he was able to prove that his labor caused or accelerated the physical malfunction.
Powers v. Riccobene Masonry Constr., Inc., 1980-NMCA-172, 97 N.M. 20, 636 P.2d
291, cert. denied, 99 N.M. 148, 655 P.2d 160.

                            E.     SPECIAL ERRAND RULE.

Special errand rule applicable where employee on special mission. — Where
deceased employee who, along with three others, was ordered by the defendant-
employer to attend a special two-day health and social services department meeting (all
of whom had been requested by their respective supervisors to form a car pool and to
return overnight to their home town between the two sessions in order to save fuel and
reduce travel costs), picked up the three other employees at an agreed on meeting
place, a parking lot, and proceeded in her car to the meeting, and at the close of the first
day's session, after discharging her three colleagues in the same parking lot, drove out
of the parking lot and immediately thereafter was involved in the accident which resulted
in her death, the supreme court held that the special errand rule was applicable in that
deceased was on a special mission for her employer and was within the scope of her
employment from the moment she left home until the moment she would have returned
home at the end of the day, and therefore, her fatal injuries arose out of and in the
course of her employment, and the "going and coming" rule was inapplicable. Edens v.
N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60, 547 P.2d 65.
The special errand rule states that when an employee, having identifiable time and
space limits on his employment, makes an off-premises journey which would normally
not be covered under the usual going and coming rule, the journey may be brought
within the course of employment by the fact that the trouble and time of making the
journey, or the special inconvenience, hazard or urgency of making it in the particular
circumstances, is itself sufficiently substantial to be viewed as an integral part of the
service itself. Edens v. N.M. Health & Soc. Servs. Dep't, 1976-NMSC-008, 89 N.M. 60,
547 P.2d 65.

Workman (Worker) who sustained fatal injuries while returning to his home town
for a dual purpose - (1) to enter a hospital, and (2) to accomplish some necessary item
of employment as shown by the trial court's findings of fact, was entitled to benefits
under this section. Clark v. Electronic City, 1977-NMCA-048, 90 N.M. 477, 565 P.2d
348, cert. denied, 90 N.M. 636, 567 P.2d 485.

"Special errand" or "special mission" for employer constitutes exception. — An
exception to the general rule that employment begins when the employee reaches his
place of work and ends when he leaves his place of work exists where the employee is
on a "special errand" or "special mission" for the employer. An employer may agree that
the employee's duties begin and end someplace other than the employee's place of
work. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert.
denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Application of special errand exception. — The special errand exception has been
applied where: (1) there is an express or implied request that the service be performed
after fixed working hours; (2) the trip involved was an integral part of the services
performed for the employer; and (3) the task performed was special in the sense that it
was not a regular and recurring task performed during normal working hours. Barton v.
Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d 1377, cert. denied, 102 N.M.
293, 694 P.2d 1358 (1985).

                          F.     GOING AND COMING RULE.

Deviation from route. — Taking a somewhat roundabout route, or being off the
shortest line between the origin and destination, does not in itself remove the traveller
from the course of employment; it must be shown in addition that the deviation was
aimed at reaching some specific personal objective. Frederick v. Younger Van Lines,
1964-NMSC-156, 74 N.M. 320, 393 P.2d 438.

Application of "going and coming" rule. — Under the "going and coming rule" worker
was not entitled to compensation for injuries suffered during a nonroutine or unusual trip
from the job site at a time when he was not being paid for travel time, and when he was
not performing a job duty for the employer. Arias v. AAA Landscaping, 1993-NMCA-
018, 115 N.M. 239, 849 P.2d 382.
The traveling-employee exception to the going and coming rule. — Under the
traveling-employee exception to the going and coming rule, an employee whose work
entails travel away from the employer’s premises is, in most circumstances, under
continuous workers’ compensation coverage from the time he leaves home until he
returns. The exception applies during the entire time the employee is traveling, and
therefore necessarily encompasses injuries incurred while the employee is not actually
working, such as when the employee is engaged in leisure or recreational activities.
One seeking compensation for an injury must still demonstrate that the injury arose out
of and in the course of employment. The requirement is met if the traveling employee
was injured while engaging in an activity that was both reasonable and foreseeable, and
if that activity is not conducted in an unreasonable or unforeseeable manner. Finally, the
activity must confer some benefit on the employer. Armenta v. A.S. Horner, Inc., 2015-
NMCA-092, cert. granted, 2015-NMCERT-008.

Where worker, on a work-related trip in Springer, New Mexico, had been allowed to
drive employer’s vehicle after work hours to pick up food and alcohol for an employees’
dinner, but after dinner was told by his supervisor to drink moderately and to not leave
the motel, worker, despite the warning, left the motel in employer’s vehicle and headed
to Raton to continue partying. Worker was killed in an accident just north of Springer.
Worker’s blood alcohol concentration was .23 at the time of his death. The accident did
not arise out of and in the course of worker’s employment because worker’s decision to
take the vehicle for a ride could be considered foreseeable and reasonable conduct
under the traveling-employee exception, but doing so under the significant influence of
alcohol was not reasonable, and no benefit could have been conferred on employer by
worker’s drinking excessively and driving to Raton, where employer had no business
interests. Armenta v. A.S. Horner, Inc., 2015-NMCA-092, cert. granted, 2015-NMCERT-
008.

Burden on plaintiff to show exception to "going and coming" rule. — The burden
of showing that a plaintiff falls within an exception to the "going and coming" rule rests
upon the plaintiff. Barton v. Las Cositas, 1984-NMCA-136, 102 N.M. 312, 694 P.2d
1377, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

                    III.   DISABILITY AS RESULT OF ACCIDENT.

                                  A.      IN GENERAL.

Liability for mental injury. — Whenever physical injury from a work-related accident is
accompanied by mental injury arising out of the same accident, the worker's sole
remedy is workers' compensation, whether or not the particular injury may be
compensated by a monetary award under the act. Maestas v. El Paso Natural Gas Co.,
1990-NMCA-092, 110 N.M. 609, 798 P.2d 210, cert. denied, 110 N.M. 653, 798 P.2d
1039.

Disability resulting from mental delusion. — Subsection A evinces a legislative intent
to restrict coverage to disability caused by real events, real occurrences at work. Not
only must the accidental injury arise out of and be in the course of the worker's
employment, but the accident must also be "reasonably incident" to the work and the
disability must be a "natural and direct result" of the accident. There is no room in the
statutory language for a disability that may have been caused by something that is only
imagined. Green v. City of Albuquerque, 1991-NMCA-104, 112 N.M. 784, 819 P.2d
1342, cert. denied, 112 N.M. 737, 819 P.2d 687.

Worker's claim for mental disablity due to perceived job harassment was not
compensable, where his delusory perception of harassment was not caused by
anything that happened at work and his mental condition was such that he would
perceive harassment regardless of what actually happened. Green v. City of
Albuquerque, 1991-NMCA-104, 112 N.M. 784, 819 P.2d 1342, cert. denied, 112 N.M.
737, 819 P.2d 687.

Disability must be "natural and direct" result of accident. — The requirement set
forth in Subsection A(3) of this section that the disability be a "natural and direct result"
of the accident supplements the proximate-cause requirement of Subsection C of
Section 52-1-9 NMSA 1978 for worker's compensation claims. Under this test a worker
is entitled to benefits for a disability arising immediately from a work-related accident
and for a disability that develops later as a result of the normal activities of life, but not
for subsequent injuries, such as a back injury during a worker's repair of his
transmission, that can be characterized as stemming from an independent, intervening
cause. Aragon v. State Cors. Dep't, 1991-NMCA-109, 113 N.M. 176, 824 P.2d 316, cert.
denied, 113 N.M. 23, 821 P.2d 1060.

The term "natural and direct" as used in this section signifies "an understandable and
reasonable proximity of cause and effect as distinguished from remote and doubtful
consequences resulting from a given occurrence." Weston v. Carper Drilling Co., 1966-
NMSC-235, 77 N.M. 220, 421 P.2d 435; Stuckey v. Furr Food Cafeteria, 1963-NMSC-
064, 72 N.M. 15, 380 P.2d 172.

No recovery on failure to establish causal connection. — Where there has been a
failure to establish the causal connection required by statute, there can be no recovery
in workmen's (workers') compensation. Torres v. Kennecott Copper Corp., 1966-NMSC-
160, 76 N.M. 623, 417 P.2d 435.

Not having established the causal connection required by Subsection B of this section,
plaintiff cannot recover. Romero v. Zia Co., 1966-NMSC-178, 76 N.M. 686, 417 P.2d
881.

Nonmedical evidence no avail where causal connection not established. — Absent
the establishment of causal connection as a medical probability, as required under this
section, nonmedical evidence would be of no avail. Renfro v. San Juan Hosp., 1965-
NMSC-067, 75 N.M. 235, 403 P.2d 681.
"Accident" is required. — A causal connection between work done and an injury is
insufficient; an accident is required. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-
109, 98 N.M. 379, 648 P.2d 1192.

Causal connection between false representation and injury. — Where an employer
proves a previous permanent disability and shows that by medical testimony the risk of
injury in his employment has increased, the employer has established a causal
connection between the false representation and the injury. Chavez v. Lectrosonics,
Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M. 683, 604 P.2d
821.

When no causal connection between false representation and injury. — If an
employee proves that his physical condition and disability is such that he was able to
perform the same duties in his prior employment without any physical difficulty, he was
able to perform the same duties before he made application for his present
employment, and he was able to perform the duties of his present employment, no
causal connection exists between the false representation and the injury. Chavez v.
Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M.
683, 604 P.2d 821.

                             B.     BURDEN OF PROOF.

Burden on plaintiff to prove death result of employment. — Burden is on plaintiff to
prove the infarction and consequent death were direct results of decedent's
employment, and plaintiff is required to establish this causal connection as a medical
probability by expert medical testimony. Bertelle v. City of Gallup, 1970-NMCA-095, 81
N.M. 755, 473 P.2d 369.

Where defendants deny that plaintiff's alleged disability was natural and direct
result of an accident, the workman (worker) must prove the causal connection as a
medical probability by expert medical testimony and failure to establish such causal
connection prevents recovery. Gallegos v. Kennedy, 1968-NMSC-170, 79 N.M. 590,
446 P.2d 642, Tom Growney Equip. Co., 2005-NMSC-015, 137 N.M. 497, 113 P.3d
320.

Denial that a disability is a natural and direct result of an accident is a condition
precedent to the duty of a workman (worker) to establish the medical probability of a
causal connection. Medrano v. Ray Willis Constr. Co., 1981-NMCA-096, 96 N.M. 643,
633 P.2d 1241.

For an accidental injury to be compensable, the disability must be a natural and direct
result of the accident and where such a result is denied, causation must be established
as a medical probability by expert medical testimony. This causation requirement
applies to any claim for worker's compensation; it makes no difference whether the
claim is for a first, second or successive accidental injury. Gonzales v. Stanke-Brown &
Assocs., 1982-NMCA-109, 98 N.M. 379, 648 P.2d 1192.
Burden of proof of causal connection. — Subsection B places the burden of
persuasion upon the widow. The statute did not shift the burden of persuasion once she
introduced evidence which would have supported a finding in her favor and even after
the introduction of conflicting evidence, it remained her burden to convince the trial court
of such causal connection as a medical probability. Mayfield v. Keeth Gas Co., 1970-
NMCA-032, 81 N.M. 313, 466 P.2d 879.

Where widow had the burden of persuading the trial court as to causation of death and
doctor's testimony raised a conflict in regard to the widow's theory of death, no benefit
resulted to widow. Mayfield v. Keeth Gas Co., 1970-NMCA-032, 81 N.M. 313, 466 P.2d
879.

This section imposes the burden upon the claimant to establish a causal connection
between the disability and the accident as a medical probability by expert medical
testimony, when the defendant has denied that the disability is a natural and direct
result of the accident. If the expert testimony is conflicting, it must be such as to
convince the trial court of such causal connection as a medical probability. Torres v.
Kennecott Copper Corp., 1966-NMSC-160, 76 N.M. 623, 417 P.2d 435; Perea v. Gorby,
1980-NMCA-048, 94 N.M. 325, 610 P.2d 212.

This section does not require that plaintiff in a psychological injury case establish that
other life stresses played no part in his disability. Lopez v. Smith's Mgmt. Corp., 1986-
NMCA-054, 106 N.M. 416, 744 P.2d 544, cert. quashed, 106 N.M. 405, 744 P.2d 180
(1987).

It is incumbent upon claimant to present one or more medical experts to testify
that in his or their opinion there is a medical probability of causal connection between
the accident alleged and the disability claimed. Renfro v. San Juan Hosp., Inc., 1965-
NMSC-067, 75 N.M. 235, 403 P.2d 681.

Where causation is denied the workman (worker) must establish that causal connection
is a medical probability by expert medical testimony. Chaffins v. Jelco, Inc., 1971-
NMCA-071, 82 N.M. 666, 486 P.2d 75, cert. quashed, 83 N.M. 22, 487 P.2d 1092.

Where causal connection is denied by an employer, in order to prevail, it is incumbent
upon a claimant to present one or more qualified medical experts to testify that in his or
their opinion there is a causal connection as a medical probability as opposed to
possibility. Corzine v. Sears, Roebuck & Co., 1969-NMCA-051, 80 N.M. 418, 456 P.2d
892, cert. denied, 80 N.M. 388, 456 P.2d 221; Yates v. Matthews, 1963-NMSC-038, 71
N.M. 451, 379 P.2d 441; Weston v. Carper Drilling Co., 1966-NMSC-235, 77 N.M. 220,
421 P.2d 435; Anderson v. Mackey, 1979-NMSC-041, 93 N.M. 40, 596 P.2d 253.

It is not the burden of movants to show there was no possibility of securing
medical opinion evidence to the effect that there existed the probable causal
connection required by this statute. Bertelle v. City of Gallup, 1970-NMCA-095, 81 N.M.
755, 473 P.2d 369.
                            C.     PROOF OF CAUSATION.

Lay testimony may establish cause of accident. — Subsection B indicates that proof
of causation by a health care provider is required to establish a connection between a
worker's injury and disability if the employer denies that the disability resulted from a
worker's accident; it does not, however, require expert testimony to establish the cause
of the worker's accident. This aspect of proof may be established by either expert or lay
testimony. Garcia v. Borden, Inc., 1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, cert.
denied, 115 N.M. 409, 852 P.2d 682.

Testimony by the claimant about his reaction from the use of chlorine to clean
equipment, stating that the chlorine caused him to become dizzy, that this dizziness
continued, causing his fall a few minutes later in the locker room, was sufficient to
explain the cause of his fall and the judge reasonably determined from this evidence
that the worker's fall arose from a risk related to his employment. Although the effect of
chlorine upon an individual is a matter that may properly be presented by expert
testimony, the judge did not err in permitting the worker to testify concerning his own
personal reaction following his use of chlorine during his work. Garcia v. Borden, Inc.,
1993-NMCA-047, 115 N.M. 486, 853 P.2d 737, cert. denied, 115 N.M. 409, 852 P.2d
682.

Section only requires claimant to prove, by reasonable medical probability,
causal connection between the accident and the disability and does not require the
claimant to prove disability by a reasonable medical certainty. Archuleta v. Safeway
Stores, Inc., 1986-NMCA-092, 104 N.M. 769, 727 P.2d 77.

Evidence sufficient to support causal connection. — Evidence was sufficient to
support a causal connection between an accidental injury sustained in the workplace
and the disability that subsequently arose. Feese v. U.S. W. Serv. Link, Inc., 1991-
NMCA-121, 113 N.M. 92, 823 P.2d 334, cert. withdrawn, 113 N.M. 23, 821 P.2d 1060.

This section requires that medical testimony be produced to establish causal
connection between an accident and disability not by direct and uncontroverted
evidence, but as a medical probability, such as opinion evidence of a medical expert.
Corzine v. Sears, Roebuck & Co., 1969-NMCA-051, 80 N.M. 418, 456 P.2d 892, cert.
denied, 80 N.M. 388, 456 P.2d 221.

Expert medical testimony must establish causation. — Except in the most obvious
cases, causation must be established by expert medical testimony. Chavez v.
Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert. denied, 93 N.M.
683, 604 P.2d 821.

Insufficient evidence to support worker’s compensation judge’s ruling as to
causation. — Where worker, employed as a laborer and labor foreman, was carrying a
twenty-five pound chipping hammer down from a scaffolding platform, stepped on an
oily or slick spot on the scaffolding, and landed on his back causing injuries to his back,
neck and upper extremities, substantial evidence did not support the workers’
compensation judge’s determination that worker failed to prove causation between the
accident and injuries to a reasonable degree of medical probability when one medical
expert provided clear evidence of causation to a reasonable degree of medical
probability between worker’s accident and the diagnosed injuries and when there was
no other medical testimony to the contrary. Trujillo v. Los Alamos Nat’l Lab., 2016-
NMCA-041, cert. denied.

It is incumbent upon claimant to present one or more medical experts. — Medical
testimony is necessary to establish the causal connection between an accidental injury
and a resulting compensable disability, but it does not resolve the questions of the date
of commencement or the degree of compensable disability. Sedillo v. Levi-Strauss
Corp., 1982-NMCA-069, 98 N.M. 52, 644 P.2d 1041, cert. denied, 98 N.M. 336, 648
P.2d 794.

Expert testimony in language that connotes statutory requirements. — The
medical expert need not state his opinion as to the causal connection between accident
and disability in positive, dogmatic language or in the exact language of the section, but
he must testify in language the sense of which reasonably connotes precisely what the
section categorically requires. Gammon v. Ebasco Corp., 1965-NMSC-015, 74 N.M.
789, 399 P.2d 279; Trujillo v. Beaty Elec. Co., 1978-NMCA-021, 91 N.M. 533, 577 P.2d
431; Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, 120 N.M. 734, 906
P.2d 266.

The medical expert need not state his opinion in positive, dogmatic language or in the
exact language of this section, but he must testify in language the sense of which
reasonably connotes precisely what the statute categorically requires. Corzine v. Sears,
Roebuck & Co., 1969-NMCA-051, 80 N.M. 418, 456 P.2d 892, cert. denied, 80 N.M.
388, 456 P.2d 221.

Medical opinion as to the requisite causal connection must be in language, the sense of
which reasonably connotes precisely what the statute categorically requires. Bertelle v.
City of Gallup, 1970-NMCA-095, 81 N.M. 755, 473 P.2d 369.

"Medical probability" and "medical possibility" of causation distinguished. — A
logical distinction can be made between "medical probability" and "medical possibility" in
a workmen's (workers') compensation case. A possible cause only becomes "probable"
when in the absence of other reasonable causal explanations it becomes more likely
than not that the injury in question was a result of its action. Bufalino v. Safeway Stores,
Inc., 1982-NMCA-127, 98 N.M. 560, 650 P.2d 844.

Licensed osteopathic physicians and surgeons may give expert medical
testimony as to causation. Medina v. Original Hamburger Stand, 1986-NMCA-107, 105
N.M. 78, 728 P.2d 488.
Testimony of four doctors who treated claimant for a back injury was sufficient to
prove a causal connection between her lifting forty-pound batteries at work and her
disability. Sanchez v. Siemens Transmission Sys., 1991-NMCA-028, 112 N.M. 236, 814
P.2d 104, rev'd on other grounds, 1991-NMSC-093, 112 N.M. 533, 817 P.2d 726.

When doctor unqualified to make opinion on psychological disability. — Where a
doctor states that he is not trained in psychological diagnosis or psychology, he is not
qualified to state an opinion based upon a medical probability that employee's
psychological disability was caused by a job-related accident. Anderson v. Mackey,
1979-NMSC-041, 93 N.M. 40, 596 P.2d 253.

Expert, without pertinent information on prior injuries, cannot give opinion. —
The rule, that when pertinent information regarding prior injuries existed about which the
expert apparently had no knowledge, his opinion cannot serve as the basis for
compliance with this section, is only applicable when there is uncontradicted testimony
of a medical expert that the information on prior injuries is pertinent. Mendez v.
Southwest Cmty. Health Servs., 1986-NMCA-066, 104 N.M. 608, 725 P.2d 584, cert.
denied, 104 N.M. 632, 725 P.2d 832.

Once causation is established by appropriate medical evidence, the absence of
medical testimony as to the extent of disability does not bar a disability award. The
extent of disability may be established by the plaintiff. Garcia v. Genuine Parts Co.,
1977-NMCA-007, 90 N.M. 124, 560 P.2d 545, cert. denied, 90 N.M. 254, 561 P.2d
1347; Marez v. Kerr-McGee Nuclear Corp., 1978-NMCA-128, 93 N.M. 9, 595 P.2d
1204, cert. denied, 92 N.M. 532, 591 P.2d 286 (1979).

Burden not met where several factors could have caused disability. — The burden
of proof, under facts such as are present here, is not met if the medical testimony only
goes so far as to establish that any one of the several separate factors involved, within
the realm of medical probability, could have caused the disability, leaving it to the trier of
the facts to take his choice. Such testimony does not rise above speculation and
surmise. Renfro v. San Juan Hosp., Inc., 1965-NMSC-067, 75 N.M. 235, 403 P.2d 681.

Where doctor's opinion fell short of raising issue. — Doctor's opinion that an
infarction would more likely result from exertion than from sleeping or slight physical
activity fell far short of raising a genuine issue of fact on the causal connection as a
medical probability between the infarction and decedent's work activities, or the strain
he sustained in the performance thereof. Bertelle v. City of Gallup, 1970-NMCA-095, 81
N.M. 755, 473 P.2d 369.

                             D.      STANDARD OF PROOF.

It is incumbent upon claimant to present one or more medical experts. — If a
disability is established by expert medical testimony to be the result of an accidental
injury, as a medical probability, as opposed to a medical possibility, the requirements of
the section have been satisfied. Stuckey v. Furr Food Cafeteria, 1963-NMSC-064, 72
N.M. 15, 380 P.2d 172.

This section provides that compensation shall be allowed only when the workman
(worker) suffers a disability established by expert medical testimony to be the natural
and direct result of the accident as a medical probability, and it is not sufficient that
causal connection be established by expert testimony as merely a medical possibility.
Gammon v. Ebasco Corp., 1965-NMSC-015, 74 N.M. 789, 399 P.2d 279.

The 1959 statute requires the workman (worker) to establish a causal connection
between the accidental injury and the claimed disability as a medical probability by
expert medical testimony, if it be denied that the disability is a natural and direct result of
the accident. Stuckey v. Furr Food Cafeteria, 1963-NMSC-064, 72 N.M. 15, 380 P.2d
172.

"Medical possibility" insufficient for award of compensation. — An award of
compensation should be denied: (1) if a court must speculate as to whether a
workman's (worker's) disability was caused by the accident; or (2) if an expert testifies
that as a medical possibility, as opposed to a medical probability, the workmen's
(workers') disability was caused by the accident. Bufalino v. Safeway Stores, Inc., 1982-
NMCA-127, 98 N.M. 560, 650 P.2d 844.

Medical testimony on causation does not require proof to absolute certainty.
Chavez v. Lectrosonics, Inc., 1979-NMCA-111, 93 N.M. 495, 601 P.2d 728, cert.
denied, 93 N.M. 683, 604 P.2d 821.

                           E.      MEDICAL EVIDENCE RULE.

Uncontradicted medical opinion as conclusive of causal connection. — Where
medical opinion based on the facts has been expressed and is uncontradicted, the
evidence is conclusive as to the establishment, as a medical probability, of the causal
connection between the accident and the disability as required in this section. Casaus v.
Levi Strauss & Co., 1977-NMCA-063, 90 N.M. 558, 566 P.2d 107, cert. denied, 90 N.M.
636, 567 P.2d 485.

Where causal connection has been denied and must be established by medical
testimony as a medical probability, and where medical opinion based on the facts has
been expressed and is uncontradicted, the evidence is conclusive upon the court as
trier of the facts. Ross v. Sayers Well Servicing Co., 1966-NMSC-099, 76 N.M. 321, 414
P.2d 679.

The evidence being uncontradicted, the trial court should have found that plaintiff
suffered a disability between March 22, 1967 and September 7, 1967, as a natural and
direct result of the accident. Mares v. City of Clovis, 1968-NMCA-102, 79 N.M. 759, 449
P.2d 667.
The uncontradicted medical evidence rule states that where medical opinion based on
the facts has been expressed and uncontradicted, the evidence is conclusive upon the
court as trier of fact. The rule is based on Subsection B, which requires that the claimant
prove a causal connection between the disability and the accident as a medical
probability by expert medical testimony. Beltran v. Van Ark Care Ctr., 1988-NMCA-043,
107 N.M. 273, 756 P.2d 1.

The uncontradicted medical evidence rule has no application where the testimony
claimed to be uncontroverted is equivocal, contradicted, or subject to reasonable doubt.
Beltran v. Van Ark Care Ctr., 1988-NMCA-043, 107 N.M. 273, 756 P.2d 1.

Trier of fact may weigh testimony. — The testimony of a doctor concerning whether a
workman's (worker's) injury, suffered in the course of his employment, caused the
disability for which compensation was sought, was opinion testimony and as such was
not conclusive, and the trier of the facts could accept, reject or give such weight only as
it deemed the same entitled to have, even though uncontradicted. Montano v.
Saavedra, 1962-NMSC-095, 70 N.M. 332, 373 P.2d 824.

Medical opinion as to the claimant's ability to perform heavy labor does not establish
causal connection between disability and accident as required by this section. Weston
v. Carper Drilling Co., 1966-NMSC-235, 77 N.M. 220, 421 P.2d 435.

Uncontradicted medical evidence rule is an exception to the general rule that a trial
court can accept or reject expert opinion as it sees fit. The rule is based on Subsection
B of this section, which requires the worker to prove causal connection between
disability and accident as a medical probability by expert medical testimony. Because
this section requires a certain type of proof, uncontradicted evidence in the form of that
type of proof is binding on the trial court. Hernandez v. Mead Foods, Inc., 1986-NMCA-
020, 104 N.M. 67, 716 P.2d 645, Banks v. IMC Kalium Carlsbad Potash Co., 2002-
NMCA-016, 133 N.M. 199, 62 P.3d 290, aff'd, 2003-NMSC-026, 134 N.M. 421, 77 P.3d
1014.

Subsection B and the uncontradicted medical evidence rule only apply to the causation
issue; on other issues, such as percentage of disability, the medical testimony may be
contradicted by the other facts and circumstances of the case. Hernandez v. Mead
Foods, Inc., 1986-NMCA-020, 104 N.M. 67, 716 P.2d 645.

Uncontradicted testimony need not be accepted as true if (1) the witness is shown to be
unworthy of belief, or (2) his testimony is equivocal or contains inherent improbabilities,
(3) concerns a transaction surrounded by suspicious circumstances, or (4) is
contradicted, or subjected to reasonable doubt as to its truth or veracity, by legitimate
inferences drawn from the facts and circumstances of the case. Hernandez v. Mead
Foods, 1986-NMCA-020, Inc., 104 N.M. 67, 716 P.2d 645.

                           F.     PREEXISTING CONDITION.
Causal connection even where preexisting condition. — There was substantial
evidence to establish a causal connection between the plaintiff's accidental injury and
his resulting disability, even though his injury was attributable in part to a preexisting
condition. Moorhead v. Gray Ranch Co., 1977-NMCA-017, 90 N.M. 220, 561 P.2d 493,
cert. denied, 90 N.M. 254, 561 P.2d 1347.

Preexisting condition does not diminish right to benefits. — It does not diminish a
worker's entitlement to benefits that a preexisting condition may make the worker more
susceptible to injury, nor does it matter that without the preexisting condition the work-
related injury might have been less disabling or perhaps not disabling at all. Edmiston v.
City of Hobbs, 1997-NMCA-085, 123 N.M. 654, 944 P.2d 883, cert. denied, 123 N.M.
626, 944 P.2d 274.

Work-related injury caused by aggravation of preexisting condition is
compensable. — Where worker appealed a workers’ compensation judge’s (WCJ)
decision denying worker’s claim for permanent partial disability and medical benefits
based on a finding that worker’s disability was not caused by his work-related accident,
the WCJ erred in denying worker’s claim, because although the work-related accident
did not cause worker’s disability, worker met his burden of proving that his work-related
accident caused an aggravation of his preexisting condition resulting in his disability and
his inability to work. Molinar v. Larry Reetz Constr., Ltd., 2018-NMCA-011, cert. denied.

Appointment of injury to work-related and preexisting causes. — When a
preexisting condition combines with a work-related injury to cause a disability, an
employee is entitled to benefits commensurate with the total disability sustained;
benefits are not apportioned according to different causal factors as long as the
disability is a natural and direct result of the accident. Edmiston v. City of Hobbs, 1997-
NMCA-085, 123 N.M. 654, 944 P.2d 883, cert. denied, 123 N.M. 626, 944 P.2d 274.

Failure to prove accident aggravated preexisting condition. — Where widow failed
to prove by expert medical testimony that deceased's weight gain was caused or
resulted from the employee's accident and treatment, she failed to prove that the
accident or treatment aggravated a preexisting condition. Mayfield v. Keeth Gas Co.,
1970-NMCA-032, 81 N.M. 313, 466 P.2d 879.

Effect of earlier injury on present disability. — Where the claimant did not inform his
doctor of an earlier back injury and his doctor did not learn of that injury until cross-
examination at trial where he stated that he could not judge the possible effect of the
earlier accident on claimant's present disability, evidence indicating plaintiff's prior injury
was to another part of his back was sufficient with doctor's testimony to establish a
causal connection between claimant's later injury and his present disability. Maes v.
John C. Cornell, Inc., 1974-NMCA-061, 86 N.M. 393, 524 P.2d 1009.

Subsequent disability result of same accident. — Even though an accident causes a
disability which results in payment of compensation for a time, the employer is not
necessarily relieved of the further duty to pay compensation for a subsequent disability,
which is the "natural and direct result" of the same accident. Linton v. Mauer-Neuer
Meat Packers, 1963-NMSC-013, 71 N.M. 305, 378 P.2d 126.

Disability resulting from a second accident, regardless of a preexisting condition, is
compensable by the employer and compensation insurer at the time of the second
accident. Gonzales v. Stanke-Brown & Assocs., 1982-NMCA-109, 98 N.M. 379, 648
P.2d 1192.

Uncontradicted medical testimony. — Where widow's primary theory of causation of
death was that her husband developed a circulatory problem due to the inactivity of the
right extremity following accident, that as a result of this circulatory problem an
embolism developed in the right leg and that death resulted from a pulmonary
embolism, and the widow introduced evidence, through an expert medical witness, in
support of her theory, her expert's testimony, if uncontradicted, was sufficient to meet
the causation requirement of this section. Mayfield v. Keeth Gas Co., 1970-NMCA-032,
81 N.M. 313, 466 P.2d 879.

Law reviews. — For comment, "Witnesses - Privileged Communications - Physician-
Patient Privilege in Workmen's Compensation Cases," see 7 Nat. Resources J. 442
(1967).

For note, "Workmen's Compensation in New Mexico: Preexisting Conditions and the
Subsequent Injury Act," see 7 Nat. Resources J. 632 (1967).

For survey of workers' compensation law in New Mexico, see 18 N.M.L. Rev. 579
(1988).

For case note, "WORKERS' COMPENSATION LAW: A Clinical Psychologist Is
Qualified to Give Expert Medical Testimony Regarding Causation: Madrid v. Univ. of
Cal., d/b/a Los Alamos National Laboratory," see 18 N.M.L. Rev. 637 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers' Compensation
§§ 242 to 258, 564 to 601.

Injury while crossing or walking along railroad or street railway tracks, going to or from
work, as arising out of and in course of employment, 50 A.L.R.2d 363.

Liability for injury or death on or near golf course, 82 A.L.R.2d 1183, 53 A.L.R.4th 282.

Suicide as compensable under Workmen's Compensation Act, 15 A.L.R.3d 616.

Injury sustained while attending employer-sponsored social affair as arising out of and
in the course of employment, 47 A.L.R.3d 566.

Employer's liability for injury caused by food or drink purchased by employee in plant
facilities, 50 A.L.R.3d 505.
Workers' Compensation: Compensability of injuries incurred traveling to or from medical
treatment of earlier compensable injury, 83 A.L.R.4th 110.

Workers' compensation: coverage of injury occurring in parking lot provided by
employer, while employee was going to or coming from work, 4 A.L.R.5th 443.

Workers' compensation: coverage of injury occurring between workplace and parking lot
provided by employer, while employee is going to or coming from work, 4 A.L.R.5th 585.

Eligibility for workers' compensation as affected by claimant's misrepresentation of
health or physical condition at time of hiring, 12 A.L.R.5th 658.

Workers' compensation: coverage of employee's injury or death from exposure to the
elements - modern cases, 20 A.L.R.5th 346.

Workers' compensation: Law enforcement officer's recovery for injury sustained during
exercise of physical recreation activities, 44 A.L.R.5th 569.

Presumption or inference that accidental death of employee engaged in occupation of
manufacturing or processing arose out of and in course of employment, 47 A.L.R.5th
801.

Employee's injuries sustained in use of employer's restroom as covered by workers'
compensation, 80 A.L.R.5th 417.

Right to workers' compensation for emotional distress or like injury suffered by claimant
as result of nonsudden stimuli - Right to compensation under particular statutory
provisions, 97 A.L.R.5th 1.

Right to workers’ compensation for physical injury or illness suffered by claimant as
result of nonsudden mental stimuli – compensability under particular circumstances,
107 A.L.R.5th 441, 112 A.L.R.5th 509.

99 C.J.S. Workmen's Compensation §§ 152 to 257; 100 C.J.S. Workmen's
Compensation § 461.