{ "id": 1586365, "name": "Paul Dean KERN, Plaintiff-Appellee, v. IDEAL BASIC INDUSTRIES, and its wholly owned subsidiary, Potash Company of America, Employer and Self-Insurer, Defendants-Appellants", "name_abbreviation": "Kern v. Ideal Basic Industries", "decision_date": "1984-09-25", "docket_number": "No. 7912", "first_page": "801", "last_page": "803", "citations": [ { "type": "official", "cite": "101 N.M. 801" }, { "type": "parallel", "cite": "689 P.2d 1272" } ], "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": "94 So.2d 478", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9903442 ], "pin_cites": [ { "page": "484-85" } ], "opinion_index": 0, "case_paths": [ "/so2d/94/0478-01" ] }, { "cite": "525 S.W.2d 220", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10122823 ], "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/sw2d/525/0220-01" ] }, { "cite": "221 Tenn. 376", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8509676 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/tenn/221/0376-01" ] }, { "cite": "93 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568817 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0455-01" ] }, { "cite": "92 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557049 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0112-01" ] }, { "cite": "96 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577371 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0376-01" ] }, { "cite": "99 N.M. 54", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584587 ], "weight": 2, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0054-01" ] }, { "cite": "72 N.M. 447", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856368 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0447-01" ] }, { "cite": "47 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562286 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0127-01" ] }, { "cite": "77 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804399 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0286-01" ] }, { "cite": "74 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801790 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "485-86" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0484-01" ] }, { "cite": "97 N.M. 226", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555191 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0226-01" ] }, { "cite": "96 N.M. 577", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577332 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0577-01" ] }, { "cite": "96 N.M. 24", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577266 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0024-01" ] }, { "cite": "235 N.E.2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "816", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "354 Mass. 124", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3867676 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/mass/354/0124-01" ] }, { "cite": "98 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582444 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0125-01" ] }, { "cite": "60 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590366 ], "weight": 4, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0101-01" ] } ], "analysis": { "cardinality": 584, "char_count": 9421, "ocr_confidence": 0.777, "pagerank": { "raw": 9.936160623738114e-08, "percentile": 0.5365139048647237 }, "sha256": "852e49c9bbee1e153a6abaae2313532266f48b5266089d074fa6ebf289937266", "simhash": "1:40b4c6b6b1e6b1a8", "word_count": 1541 }, "last_updated": "2023-07-14T22:42:52.435207+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY, C.J., and NEAL, J., concur." ], "parties": [ "Paul Dean KERN, Plaintiff-Appellee, v. IDEAL BASIC INDUSTRIES, and its wholly owned subsidiary, Potash Company of America, Employer and Self-Insurer, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendants moved to dismiss the complaint seeking worker\u2019s compensation benefits for failure to state a claim upon which relief could be granted. Depositions were considered at the hearing on the motion; thus the motion is to be treated as a motion for summary judgment. NMSA 1978, Civ. P.R. 12(b) (Repl.Pamp.1980). The trial court denied the motion. This court granted an interlocutory appeal. The issue, as stated in the trial court\u2019s order, is whether plaintiff may recover worker\u2019s compensation benefits \u201cbecause Plaintiff suffered a mental breakdown from being terminated from Defendants [sic] employ.\u201d The uncontradicted showing in the depositions is that plaintiff suffered a major reactive depression, had psychotic episodes, attempted suicide and was disabled.\nPlaintiff had worked for defendants for fifteen years. At the time of termination, plaintiff was employed as a safety engineer. On December 1, 1982, plaintiff reported to and was answerable to Frank Miller. On December 1, 1982, plaintiff, while at work, was called to Miller\u2019s office and notified that he was terminated. The effective date of termination was January 15, 1983; plaintiff\u2019s last day on the job was January 10, 1983. However, the uncontradicted showing was that plaintiff\u2019s mental health began deteriorating shortly after December 1, 1982.\nA physician deposed: \u201cIt was the loss of the job in my opinion that precipitated and caused the depression and the psychosis____ I think his [plaintiff\u2019s] symptoms and his illness was caused ... by the trauma that he suffered at the loss of the job, not based on the job itself.\u201d The physician also deposed that loss of a job \u201cis something everybody has to face\u201d and agreed that loss of a job is not peculiar to employees in the potash industry, nor peculiar to safety engineers, but encompasses almost every type of occupational pursuit.\nIn order to obtain compensation benefits, plaintiff must have sustained an accidental injury. NMSA 1978, \u00a7\u00a7 52-1-9 and 52-1-28. Defendants contend that the mental breakdown plaintiff suffered as a result of his employment being terminated did not amount to an accidental injury. Plaintiff contends that his mental breakdown comes literally within the definition of accidental injury stated in Gilbert v. E.B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992 (1955). We do not decide this appeal on the basis of the \u201caccidental injury\u201d requirement. However, see the special concurrence in Hernandez v. Home Education Livelihood Program, Inc., 98 N.M. 125, 645 P.2d 1381 (Ct.App.1982); In re Korsun\u2019s Case, 354 Mass. 124, 235 N.E.2d 814 (1968). We assume, but do not decide, that plaintiff suffered an accidental injury.\nFor an accidental injury to be compensable, the accidental injury must arise out of the employment and the accident must be reasonably incident to the employment. Section 52-1-28. As stated in Section 52-1-9(B), \u201cat the time of the accident, the employee is performing service arising out of ... his employment[.]\u201d The \u201carising out of\u201d and \u201cincident to\u201d employment requirements have been repeatedly defined. Plaintiff relies on the definition in Adamchek v. Gemm Enterprises, Inc., 96 N.M. 24, 627 P.2d 866 (1981), emphasizing that \u201carising out of\u201d is concerned with a \u201ccause.\u201d He points out that the injury must be caused by a risk to which the worker was subjected by his employment. While this is an accurate general statement, see Velkovitz v. Penasco Independent School District, 96 N.M. 577, 633 P.2d 685 (1981), it fails to consider that a \u201crisk to which the worker was subjected by his employment\u201d has been more precisely defined.\nAdamchek, upon which plaintiff relies, points out that the causal connection of \u201carising out of\u201d involves the connection between the conditions under which the work is required to be performed and the resulting injury. Wilson v. Richardson Ford Sales, Inc., 97 N.M. 226, 228, 638 P.2d 1071 (1981), refers to a \u201c \u2018risk incident to the work itself.\u2019 \u201d Berry v. J. C. Penney Co., 74 N.M. 484, 485-86, 394 P.2d 996 (1964), explains \u201crisk incident to the work\u201d as a \u201crisk peculiar to the employment\u201d and states that the employment must contribute to the risk. Williams v. City of Gallup, 77 N.M. 286, 421 P.2d 804 (1966), states that the employment must contribute something to the hazard. Gilbert v. E.B. Law & Son, Inc., 60 N.M. 101, 287 P.2d 992 and Barton v. Skelly Oil Co., 47 N.M. 127, 138 P.2d 263 (1943), refer to a risk increased by the circumstances of the employment. See Luvaul v. A. Ray Barker Motor Co., 72 N.M. 447, 384 P.2d 885 (1963).\nAs McDaniel v. City of Albuquerque, 99 N.M. 54, 55, 653 P.2d 885 (Ct.App.1982), states: \u201cThe \u2018arising out of\u2019 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 ____\u201d See also Schober v. Mountain Bell Telephone, 96 N.M. 376, 630 P.2d 1231 (Ct.App.1980); Gutierrez v. Artesia Public Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978). Cf. Martinez v. University of California, 93 N.M. 455, 601 P.2d 425 (1979).\nPlaintiff\u2019s answer brief states: \u201cIt is clear that the possibility of being fired is a risk to which Paul Kern was subjected by his employment. He would not be at such risk if he were not employed.\u201d This argument fails to consider that the risk that the employment might be terminated was not a risk incident to the performance of plaintiff\u2019s work, and was not peculiar to plaintiff\u2019s employment.\nIn re Korsun\u2019s Case states:\nApprehension over the prospect of losing one\u2019s job does not arise \u201cout of the nature, conditions, obligations or incidents of the employment.\u201d ... Rather it is a state of mind which arises from the common necessity of working for a living. Social legislation designed to relieve the consequences of losing one\u2019s job is found elsewhere.\n235 N.E.2d at 816 (citations omitted).\nChapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 762 (1968), states:\n[T]he stress mentioned in this record as contributing in any sense to deterioration of Mr. Chapman\u2019s condition to the point of fatality is not referable to the employment ... but rather, and only, to the inevitable termination of such employment____\nThis record is devoid of any material evidence to support the finding ... that the deceased\u2019s death arose out of his employment.\nCity of Austin v. Johnson, 525 S.W.2d 220, 221 (Tex.Civ.App.1975), pointed out that a risk incidental to employment must be connected with what a worker has to do in performing a contract of service, and held: \u201cTo hold that worry and anxiety over job loss is \u2018connected with what a workman has to do in performing his contract of service\u2019 would in our opinion not be reasonable.\u201d\nSeals v. City of Baton Rouge, 94 So.2d 478, 484-85 (La.Ct.App.1957), states:\n[T]he notice of forced retirement or acceptance of disability benefits and resulting thrombosis had nothing whatsoever to do with the services being performed or to be performed, which he was employed to do, for his employer____ [T]he letter [recommending that the employee request a disability pension with the alternative that his disability would be brought to the attention of the Civil Service Board] ... had nothing whatsoever to do with services to be performed by Captain Seals for and on behalf of the City of Baton Rouge, but only had something to do with his retirement and had no connection whatsoever with work to be performed____ [T]he accident must have some causal connection with the employment, that is to say, with the service being performed or to be performed in the furtherance of the work of the employment or growing out of said employment____\n... If we followed plaintiff\u2019s contention and theory in this case, every employer in this state would be in a quandry and stalemate as to the discharge or forced retirement of any of its employees who it may know or not know of having coronary complications. If the employer was forced to discharge an employee due to economic reasons, said discharge may cause mental worry and agitation, and as a result, cause coronary thrombosis. The same is likewise true with reference to informing an employee of his forced retirement or for his disability retirement. In either event, if, as a result of the discharge or notice to the employee of forced retirement or disability retirement (such as what took place in the case at bar), the employee develops a thrombosis and dies as a result, the employer would be liable for compensation. We do not believe the legislature ever intended that situation to exist.\nPlaintiff did not suffer an accidental injury arising out of his employment. The trial court\u2019s order is reversed. The cause is remanded with instructions to grant defendants\u2019 motion for summary judgment.\nThis being an appeal by the employer in a worker\u2019s compensation case, no appellate costs are awarded.\nIT IS SO ORDERED.\nDONNELLY, C.J., and NEAL, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "James L. Dow, Lesley S. Williams, Dow & Feezer, P.A., Carlsbad, for plaintiff-appellee.", "Jay W. Forbes, Michael E. Dargel, McCormick & Forbes, Carlsbad, for defendants-appellants." ], "corrections": "", "head_matter": "689 P.2d 1272\nPaul Dean KERN, Plaintiff-Appellee, v. IDEAL BASIC INDUSTRIES, and its wholly owned subsidiary, Potash Company of America, Employer and Self-Insurer, Defendants-Appellants.\nNo. 7912.\nCourt of Appeals of New Mexico.\nSept. 25, 1984.\nCertiorari Denied Oct. 29, 1984.\nJames L. Dow, Lesley S. Williams, Dow & Feezer, P.A., Carlsbad, for plaintiff-appellee.\nJay W. Forbes, Michael E. Dargel, McCormick & Forbes, Carlsbad, for defendants-appellants." }, "file_name": "0801-01", "first_page_order": 835, "last_page_order": 837 }