{ "id": 4188809, "name": "SONYA CASTILLO, Personal Representative over the Estate of ALFREDO CASTILLO, individually, and as next friend of the minor children, BRIAN LOPEZ, CHRISTIAN CASTILLO, and JULISSA CASTILLO, Plaintiffs-Appellants, v. CAPROCK PIPE & SUPPLY, INC., Defendant-Appellee", "name_abbreviation": "Castillo v. Caprock Pipe & Supply, Inc.", "decision_date": "2012-07-19", "docket_number": "No. 33,675; Docket No. 31,499", "first_page": "359", "last_page": "365", "citations": [ { "type": "official", "cite": "2012-NMCA-085" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "630 P.2d 1236", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "opinion_index": 0 }, { "cite": "630 P.2d 1235", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "opinion_index": 0 }, { "cite": "630 P.2d 1233", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "1235" } ], "opinion_index": 0 }, { "cite": "96 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577371 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "378, 380" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0376-01" ] }, { "cite": "43 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "pin_cites": [ { "page": "452", "parenthetical": "concluding that the death of salesman from malaria contracted from a mosquito bite while on a business trip in South Africa was covered by workers' compensation law" } ], "opinion_index": 0 }, { "cite": "428 So. 2d 892", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9541062 ], "year": 1983, "pin_cites": [ { "page": "896", "parenthetical": "holding that flea bites, causing an iron worker in a paper mill to get typhus fever, constituted an accident within intendment of workers' compensation law" } ], "opinion_index": 0, "case_paths": [ "/so2d/428/0892-01" ] }, { "cite": "691 S.W.2d 879", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6141059 ], "year": 1985, "pin_cites": [ { "page": "881", "parenthetical": "holding that the claimant's injury was covered by worker's compensation where she was bitten by a spider while working on a food processing line" } ], "opinion_index": 0, "case_paths": [ "/ark-app/15/0226-01" ] }, { "cite": "45 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565158 ], "weight": 14, "year": 1941, "pin_cites": [ { "page": "356" }, { "page": "343" }, { "page": "358-59" }, { "page": "345", "parenthetical": "emphasis, internal quotation marks, and citation omitted" }, { "page": "371" }, { "page": "353" }, { "page": "371-72" }, { "page": "353" }, { "page": "372" }, { "page": "353" }, { "page": "372-73" }, { "page": "353", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nm/45/0354-01" ] }, { "cite": "77 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804399 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "289", "parenthetical": "\"The employment must contribute something to the hazard of the [injury].\"" }, { "page": "806", "parenthetical": "\"The employment must contribute something to the hazard of the [injury].\"" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0286-01" ] }, { "cite": "394 P.2d 997", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1966, "pin_cites": [ { "parenthetical": "\"The employment must contribute something to the hazard of the [injury].\"" } ], "opinion_index": 0 }, { "cite": "74 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801790 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "485-86", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "997", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0484-01" ] }, { "cite": "2007-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668938 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0249-01" ] }, { "cite": "2008-NMCA-123", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4002574 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0782-01" ] 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"2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RODERICK T. KENNEDY, Judge", "TIMOTHY L. GARCIA, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "SONYA CASTILLO, Personal Representative over the Estate of ALFREDO CASTILLO, individually, and as next friend of the minor children, BRIAN LOPEZ, CHRISTIAN CASTILLO, and JULISSA CASTILLO, Plaintiffs-Appellants, v. CAPROCK PIPE & SUPPLY, INC., Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} The sole issue before us today is whether the injury and resulting death of a worker caused by a disease contracted from pigeons roosting in the warehouse where he worked falls within the exclusivity provisions of the Workers\u2019 Compensation Act (Act), NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (1987, as amended through 2007), or the Occupational Disease Disablement Law (Disablement Law), NMSA 1978, \u00a7\u00a7 52-3-1 to -60 (1945, as amended through 2003). In this case, Alfredo Castillo contracted psittacosis from exposure to roosting pigeons while working as a warehouse laborer at Caprock Pipe & Supply, Inc. (Defendant). As a result of the disease, Castillo died. Castillo\u2019s estate, wife, and children (Plaintiffs) brought a wrongful death action on Castillo\u2019s behalf against Defendant for damages.\n{2} Caprock moved to dismiss the case on the ground that it was barred by the exclusivity provisions of the Act and the Disablement Law. The district court dismissed the case, holding that the allegations of Plaintiffs\u2019 complaint fell within the exclusivity provisions of either law. For reasons explained below, we conclude that Castillo\u2019s injury and death do not fall within the exclusivity provisions of the Disablement Law, but are covered by the Act. We therefore affirm the district court\u2019s decision to dismiss because Plaintiffs\u2019 lawsuit is precluded by the Act.\nI. STANDARD OF REVIEW\n{3} \u201cA motion to dismiss for failure to state a claim should not be granted unless it appears that [the] plaintiff cannot recover, or be entitled to relief, under any state of facts provable under the complaint.\u201d Duran v. N.M. Monitored Treatment Program, 2000-NMCA-023, \u00b6 19, 128 N.M. 659, 996 P.2d 922 (internal quotation marks and citation omitted). We assume all factual allegations included in the complaint are true, but \u201cconclusions of law are not [considered) admitted.\u201d Id. The applicability of the Disablement Law or the Act is a question of law that we review de novo. Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, \u00b6 11, 134 N.M. 421, 77 P.3d 1014; Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, \u00b6 21, 127 N.M. 47, 976 P.2d 999.\nII. DISCUSSION\nA. The Disablement Law Does Not Apply\n{4} By creating both the Disablement Law and the Act, the Legislature intended \u201cto assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers.\u201d NMSA 1978, \u00a7 52-5-1 (1990).\n[Both laws] fulfill[] [their] purpose through a bargain in which an injured worker gives up his or her right to sue the employer for damages in return for an expedient settlement covering medical expenses and wage benefits, while the employer gives up its defenses in return for immunity from a tort claim.\nMorales v. Reynolds, 2004-NMCA-098, \u00b6 6, 136 N.M. 280, 97 P.3d 612. The right to compensation is exclusive under the Disablement Law only when \u201cthe disablement or death is proximately caused by an occupational disease arising out of and in the course of his employment, and is not intentionally self-inflicted.\u201d NMSA 1978, \u00a7 52-3-8(C) (1953). At issue here is whether there is sufficient causation to categorize Castillo\u2019s disease as occupational. NMSA 1978, Section 52-3-32 (1989) states what is required to establish causation:\nThe occupational diseases defined in [NMSA 1978, Section 52-3-33 (1973)] shall be deemed to arise out of the employment only if there is a direct causal connection between the conditions under which the work is performed and the occupational disease and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not have been foreseen or expected but after its contraction must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.\n(Emphasis added.)\n{5} The Disablement Law clearly requires the disease to be closely related to the nature of the employment. To be covered by the Disablement Law, \u201cthe disease must be one due wholly to causes and conditions which are normal and constantly present and characteristic of the particular occupation^] . . . Every worker in every plant of the same industry is alike constantly exposed to the danger of contracting a particular occupational disease.\u201d Marable v. Singer Bus. Machs., 92 N.M. 261, 262, 586 P.2d 1090, 1091 (Ct. App. 1978) (internal quotation marks and citation omitted). There must be some \u201crecognizable link between the disease and some distinctive feature of [the worker\u2019s] job.\u201d Martinez v. Univ. of Cal., 93 N.M. 455, 457, 601 P.2d 425, 427 (1979) (internal quotation marks and citation omitted). \u201cTo come within the definition, an occupational disease must be a disease which is a natural incident of a particular occupation, and must attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of that attending employment in general.\u201d Herrera v. Fluor Utah, Inc., 89 N.M. 245, 247, 550 P.2d 144, 146 (Ct. App. 1976) (internal quotation marks and citation omitted). \u201cIt must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question.\u201d Marable, 92 N.M. at 262, 586 P.2d at 1091 (internal quotation marks and citation omitted).\n{6} In the present case, with relation to this issue of causation, Defendant solely argues that Castillo \u201cwas exposed to pigeons in the work environment due to his particular occupation ... as a warehouse laborer in an open-air warehouse.\u201d There is no evidence in the record, nor does Defendant cite any, that pigeons or psittacosis were incidental to the character of the oilfield supply business, or such businesses that employ people within warehouses. Nor is it otherwise obvious to the Court, from factually analogous case law or common knowledge which links particular injuries with particular occupations, that there is a known natural incident of psittacosis which relates to employment within the oilfield or warehouse-laborer occupational field. Thus, we cannot conclude that psittacosis was a natural incident of Defendant\u2019s employment in the warehouse. Therefore, the Disablement Law does not apply to this set of facts. We next determine whether Castillo\u2019s death would be covered exclusively by the Act.\nB. The Act Is Plaintiffs\u2019 Exclusive Remedy\n{7} For the Act to apply and preclude a cause of action by the employee, three requirements must be met:\nA. [A]t the time of the accident, the employer has complied with the provisions thereof regarding insurance;\nB. [A]t the time of the accident, the employee is performing service arising out of and in the course of his employment; and\nC. [T]he injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted.\nNMSA 1978, \u00a7 52-1-9 (1973). Plaintiffs do not dispute the accidental nature of Castillo\u2019s death. Rather, Plaintiffs argue that the third prong cannot be met, in that Castillo\u2019s death was not an accident \u201carising out of and in the course of [his] employment\u201d and, thus, falls outside of the Act. \u201cThe term \u2018arise out of\u2019 relates to the cause of the injury, while the phrase \u2018in the course of\u2019 refers to the time, place and circumstances under which the injury occurred.\u201d Wilson v. Richardson Ford Sales, Inc., 97 N.M. 226, 229, 638 P.2d 1071, 1074 (1981). We address each factor, starting with \u201cin the course of employment.\u201d Id.\n1. In the Course of Employment\n{8} Plaintiffs argue that \u201cin the course ... of employment\u201d requirement has not been met because, although the injury took place during the period of employment and at the place of employment, the circumstances of Castillo\u2019s injury were not related to his employment. See Chavez v. ABF Freight Sys., Inc., 2001-NMCA-039, \u00b6 10, 130 N.M. 524, 27 P.3d 1011 (\u2018\u201c[I]n the course of\u2019 . . . refers to the time, place, and circumstances under which the injury occurred.\u201d (alterations in original) (internal quotation marks and citation omitted)). Plaintiffs state that \u201c[t]he \u2018condition\u2019 at Defendant\u2019s premises, i.e., roosting pigeons, was in no way linked to . . . Castillo\u2019s employment, other than [by] location.\u201d Plaintiffs appear to argue that roosting pigeons were unrelated to Castillo\u2019s job and, therefore, the injury did not occur under the circumstances of employment.\n{9} Plaintiffs misinterpret the meaning of \u201ccircumstances\u201d with regard to how our case law has defined the \u201cin the course of employment\u201d requirement. \u201cThe phrase, in the course of employment, relates to the time, place, and circumstances under which the accident takes place.\u201d Flores v. McKay Oil Corp., 2008-NMCA-123, \u00b6 10, 144 N.M. 782, 192 P.3d 777 (internal quotation marks and citation omitted). But, we take this to mean that \u201can injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.\u201d Grimes v. Wal-Mart Stores Inc., 2007-NMCA-028, \u00b6 7, 141 N.M. 249, 154 P.3d 64 (alteration, internal quotation marks, and citation omitted). \u201cIf the worker was not reasonably involved in fulfilling the duties of his employment at the time of his injury, he was not acting within the course of his employment.\u201d Flores, 2008-NMCA-123, \u00b6 10. This inquiry relates to the predictability and reasonableness of the worker\u2019s actions in becoming injured and not to the employer\u2019s contributions to the injury by permitting pigeons in a work area. Thus, the \u201ccircumstances under which the injury occurred\u201d refer to the employee\u2019s actions: whether the employee was performing the duties of his job when the injury occurred.\n{10} Here, allegations by Plaintiffs established that Castillo contracted the disease while performing the duties of his employment, during work hours, while at Defendant\u2019s warehouse. Therefore, the requirement that the injury occur \u201cin the course of his employment\u201d has been met. The fact that pigeons were roosting in the warehouse does not factor into this inquiry because that fact has application to the question of causation, rather than whether an injury occurred in the course of employment. We therefore next analyze whether the cause of the injury meets the requirements of the Act.\n2. Arising Out Of Employment\n{11} As stated above, the Actrequires that the injury \u201cis proximately caused by accident arising out of... [the worker\u2019s] employment.\u201d \u00a7 52-l-9(C). Plaintiffs argue that causation cannot be met because Castillo\u2019s injury was not related to his job duties and that \u201ccontracting psittacosis from roosting pigeons is not a rational consequence of being a warehouse laborer.\u201d Plaintiffs state that roosting pigeons are not \u201can inherent part of one\u2019s job as a warehouse laborer at an oilfield supply business.\u201d\n{12} Our case law has established that \u2018\u201carising out of employment\u2019 . . . require[s] a showing that the injury was caused by a peculiar or increased risk to which claimant, as distinguished from the general public, was subjected by his employment.\u201d Berry v. J.C. Penney Co., 74 N.M. 484, 485-86, 394 P.2d 996, 997 (1964) (internal quotation marks and citation omitted). \u201c[T]he accident must result from a risk incident to the work itself.\u201d Id. at 485, 394 P.2d 997; see Williams v. City of Gallup, 77 N.M. 286, 289, 421 P.2d 804, 806 (1966) (\u201cThe employment must contribute something to the hazard of the [injury].\u201d). \u201cAn injury arises out of employment if the claimant was performing acts the employer instructed the claimant to perform, acts incidental to the claimant\u2019s assigned duties, or acts which the claimant had a common law or statutory duty to perform.\u201d Chavez, 2001-NMCA-039, \u00b6 10 (internal quotation marks and citation omitted).\n{13} In this case, Castillo\u2019s injury was caused by his exposure to pigeons and pigeon feces within Defendant\u2019s warehouse. Castillo had a peculiar or increased risk of being exposed to pigeons solely as a result of his employment in a warehouse occupied by pigeons. And it appears that this risk was particular to Castillo and his fellow laborers at this warehouse and not the general public because the allegations of roosting were limited to the warehouse. During the time that Castillo contracted psittacosis, Plaintiffs indicate that Castillo was performing activities that he was instructed to do by Defendant. Specifically, he was working as a laborer in the warehouse. They do not contend that he was performing abnormal, or non-work-related activities that caused him to be exposed to the pigeons. Although Castillo appears to have met the basic requirements for causation and is thus subjected to the Act\u2019s exclusivity provisions, the issue remains as to whether causation can be negated on the basis that the injury was precipitated by unusual circumstances connected with the environmental conditions of the employment.\n{14} In Stevenson v. Lee Moor Contracting Co., the New Mexico Supreme Court addressed a very similar question when considering whether a truck driver\u2019s injury was exclusively covered by the predecessor of the present Act. 45 N.M. 354, 356, 115 P.2d 342, 343 (1941). The truck driver was employed by a road building contractor and became ill with pneumonia after one day of driving and operating a particularly heavy truck that emitted excessive dust and fumes. Id. At trial, evidence established that the excessive gases were inhaled by the truck driver and irritated his respiratory tract \u201cto such an extent that the pneumo[]cocci germs were enabled to multiply and become active in [the truck driver\u2019s] body . . . resulting in pneumonia.\u201d Id. At issue on appeal, similar to the case at bar, was causation. The then-version of the Act also required \u201cthe injury or death [to be] proximately caused by accident arising out of and in the course of his employment^]\u201d Id. at 358-59, 115 P.2d at 345 (emphasis, internal quotation marks, and citation omitted). The Court recognized that \u201c[i]t is common knowledge that the breathing of fumes and gases hy truck drivers performing such labor does not ordinarily cause pneumonia.\u201d Id. at 371, 115 P.2d at 353. Nonetheless, the Court reasoned:\nThe effect of the findings of the court is that [the truck driver] was exposed to extraordinary hazards, greater than those of the community generally, who are engaged in truck driving, and greater than that of any other workman engaged in truck driving on the same job, and greater than ordinarily incident to the labor in which he was engaged.\nId. at 371-72, 115 P.2d at 353. The Court stated that, \u201c[u]nder such state of facts[,] the courts generally agree that the injury sustained is by accident, and compensable under [the Act]\u201d and held that the Act applied to the truck driver\u2019s injury. Id. at 372, 115 P.2d at 353. The Court explained that \u201ca disease, which is not the ordinary result of an employee\u2019s work... but contracted as a direct result of unusual circumstances connected therewith, is to be considered an injury by accident\u201d under the Act. Id. at 372-73, 115 P.2d at 353 (alteration in original) (internal quotation marks and citation omitted); see Gerber Products v. McDonald, 691 S.W.2d 879, 881 (Ark. Ct. App. 1985) (holding that the claimant\u2019s injury was covered by worker\u2019s compensation where she was bitten by a spider while working on a food processing line); Oalmann v. Brock & Blevins Co., 428 So. 2d 892, 896 (La. Ct. App. 1983) (holding that flea bites, causing an iron worker in a paper mill to get typhus fever, constituted an accident within intendment of workers\u2019 compensation law); Lepow v. Lepow Knitting Mills, Inc., 43 N.E.2d 450, 452 (N.Y. 1942) (concluding that the death of salesman from malaria contracted from a mosquito bite while on a business trip in South Africa was covered by workers\u2019 compensation law).\n{15} This Court also addressed a similar issue of causation in Schober v. Mountain Bell Telephone, 96 N.M. 376, 630 P.2d 1231 (Ct. App. 1980). In Schober, a worker sought to secure workers\u2019 compensation benefits after he collapsed at work due to exposure to cigarette smoke, to which he was allergic. Id. at 378, 380, 630 P.2d 1233, 1235. The employer argued that the worker\u2019s \u201ccollapse was due to idiopathic sensitivity to tobacco smoke and not to any risk inherent in his employment.\u201d Id. at 380, 630 P.2d 1235. The employer contended that the injury therefore did not arise out of his employment and was not covered by the Act. Id. The evidence indicated that the areas where the worker worked contained tobacco smoke and \u201c[a]ny and everyone who worked there was subjected to the smoke and to the risk that they might be or become allergic to it.\u201d Id. at 381, 630 P.2d 1236. We explained that, for the worker, \u201cemployment at Mountain Bell where others smoked contributed something to the hazard that he would ultimately collapse as his tolerance to cigarette smoke decreased.\u201d Id. We concluded that the worker\u2019s continuous exposure to tobacco smoke was a significant cause of his injury and, therefore, the injury did arise out of his employment. Id.\n{16} These cases lead us to conclude that, although the pigeons were an unusual circumstance of Castillo\u2019s employment and that pigeons and psittacosis may not be inherent risks of working in a warehouse, his injury is nonetheless exclusively covered by the Act. Castillo was clearly subject to a greater risk of contracting psittacosis by working in Defendant\u2019s warehouse. Like in Stevenson and Schober, the continuous exposure to pigeons and pigeon feces at work was a significant cause, if not the cause of his injury. It was because of his employment that Castillo contracted the disease and died. In other words, a risk of his employment at the warehouse, however unusual, resulted in the injury. Therefore, we conclude that, even though the causation was unusual, the injury was sufficiently connected to his employment for recovery to be exclusively covered by the Act. The district court did not err in dismissing Plaintiffs\u2019 lawsuit, as Plaintiffs\u2019 exclusive remedy is through the Act.\nIII. CONCLUSION\n{17} Since Castillo\u2019s death arose out of and in the course of employment, we conclude that the Act provided an exclusive remedy to Plaintiffs. We affirm the district court.\n{18} IT IS SO ORDERED.\nRODERICK T. KENNEDY, Judge\nWE CONCUR:\nTIMOTHY L. GARCIA, Judge\nJ. MILES HANISEE, Judge", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Max Houston Proctor Hobbs, NM Dick Blenden Carlsbad, NM for Appellants", "Miller Stratvert P.A. Erica R. Neff Timothy R. Briggs Albuquerque, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Denied, July 19, 2012,\nNo. 33,675\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2012-NMCA-085\nFiling Date: May 30, 2012\nDocket No. 31,499\nSONYA CASTILLO, Personal Representative over the Estate of ALFREDO CASTILLO, individually, and as next friend of the minor children, BRIAN LOPEZ, CHRISTIAN CASTILLO, and JULISSA CASTILLO, Plaintiffs-Appellants, v. CAPROCK PIPE & SUPPLY, INC., Defendant-Appellee.\nMax Houston Proctor Hobbs, NM Dick Blenden Carlsbad, NM for Appellants\nMiller Stratvert P.A. Erica R. Neff Timothy R. Briggs Albuquerque, NM for Appellee" }, "file_name": "0359-01", "first_page_order": 375, "last_page_order": 381 }