{ "id": 720191, "name": "Ernest GREEN, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Employer and Self-Insurer, Defendant-Appellee", "name_abbreviation": "Green v. City of Albuquerque", "decision_date": "1991-09-05", "docket_number": "No. 12701", "first_page": "784", "last_page": "787", "citations": [ { "type": "official", "cite": "112 N.M. 784" }, { "type": "parallel", "cite": "819 P.2d 1342" } ], "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": "137 Cal.Rptr. 142", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1977, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "68 Cal.App.3d 233", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2009791 ], "year": 1977, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/68/0233-01" ] }, { "cite": "182 Cal.Rptr. 304", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 3, "year": 1982, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "131 Cal.App.3d 308", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2080152 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/cal-app-3d/131/0308-01" ] }, { "cite": "268 N.W.2d 1", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1978, "opinion_index": 0 }, { "cite": "403 Mich. 1", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1960921 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/mich/403/0001-01" ] }, { "cite": "718 P.2d 977", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10414685 ], "year": 1986, "pin_cites": [ { "page": "983", "parenthetical": "awarding compensation based on imaginary stress is inconsistent with \"arising out of\" language" } ], "opinion_index": 0, "case_paths": [ "/p2d/718/0977-01" ] }, { "cite": "429 A.2d 1063", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "178 N.J.Super. 571", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 900151 ], "opinion_index": 0, "case_paths": [ "/nj-super/178/0571-01" ] }, { "cite": "296 Or. 145", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 8641804 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/or/296/0145-01" ] }, { "cite": "93 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568817 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "457-58" }, { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0455-01" ] }, { "cite": "105 N.M. 167", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599029 ], "weight": 4, "pin_cites": [ { "page": "175" }, { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0167-01" ] }, { "cite": "76 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501379 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0225-01" ] } ], "analysis": { "cardinality": 550, "char_count": 9373, "ocr_confidence": 0.774, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3639995999766782 }, "sha256": "92a26bd54463a90f7653f23ab72715b0c0bb763cbd408934926ab085fc7c4094", "simhash": "1:884d1d33d21e786a", "word_count": 1496 }, "last_updated": "2023-07-14T17:49:39.380170+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID, C.J., and PICKARD, J., concur." ], "parties": [ "Ernest GREEN, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Employer and Self-Insurer, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nHARTZ, Judge.\nWorker appeals from the district court\u2019s denial of his claim for workers\u2019 compensation benefits. He contends that a mental disability due to perceived job harassment is compensable in New Mexico. He also claims that he is entitled to relief because of the destruction of medical records by his employer, the City of Albuquerque. We affirm the judgment of the district court.\nPERCEIVED HARASSMENT\nWhile a portion of worker\u2019s appeal is predicated on a contention that the district court\u2019s findings of fact were not supported by the evidence, we reject that claim. Worker\u2019s brief totally fails to summarize the extensive pertinent evidence supporting the district court\u2019s findings. Therefore, worker has waived his contention that the findings are not supported by substantial evidence. See SCRA 1986, 12-213(A)(3). Accordingly, the findings of the district court are the facts upon which we determine this appeal. See Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966).\nAmong the findings by the district court were the following:\n3. Plaintiff was initially hired as a laborer.\n4. Plaintiff was promoted to truck driver.\n5. Plaintiff never complained about his job duties.\n6. Plaintiff never exhibited any problems with his job duties.\n7. Plaintiff was praised by his supervisors for doing a good job.\n8. Plaintiff was treated fairly by his supervisor and co-workers.\n9. Plaintiff was treated in the same manner on the job as his fellow workers.\n* * * *\n12. Plaintiff\u2019s mental disability is not a mental disability that can be caused by job stress.\n13. Plaintiff\u2019s mental disability is not a mental disability that can be caused by harassment on the job.\nTaken alone, these findings would compel denial of disability benefits to worker. If worker\u2019s mental disability is of a type that cannot be caused by job stress or harassment, it follows that it was not caused by stress or harassment in this case.\nThe issue is complicated, however, by the following finding:\n16. To a reasonable medical probability, Plaintiff's disability was caused by his perceived harassment on the job.\nThis finding was supplemented by two further findings:\n17. Plaintiff\u2019s psychiatrist presented no evidence that Plaintiff\u2019s disability was caused by job stress.\n18. Plaintiff\u2019s psychiatrist presented no evidence that Plaintiff was, in fact, harassed on the job.\nWe have difficulty understanding how an ailment that cannot be caused by something can be caused by a misperception that the something has occurred. Nevertheless, finding 16 is apparently neither a clerical error nor inadvertent. The court\u2019s first conclusion of law is: \u201cA mental disability due to perceived job harassment is not compensable in a worker\u2019s compensation case in New Mexico.\u201d This case therefore squarely presents the question of whether compensation is due when a mental disability which cannot be caused by job harassment or stress was caused by a false perception of harassment.\nIn recent years the New Mexico legislature has made repeated, substantial changes in the law with respect to when mental disability is compensable under the Workers\u2019 Compensation Act. This case comes under what is now commonly referred to as the \u201cOld Act,\u201d which predates those changes. See NMSA 1978, \u00a7\u00a7 52-1-1 to -69 (Orig. Pamp.). Under that law we have held that psychological disability caused by actual stress at work is compensable. Candelaria v. General Elec. Co., 105 N.M. 167, 730 P.2d 470 (Ct.App.1986). We can assume, without deciding, that compensation would be allowed in such circumstances to a person who is unusually vulnerable to conditions at work and has suffered a disability when \u201cnormal\u201d people would not have become disabled. See Martinez v. University of Cal., 93 N.M. 455, 457-58, 601 P.2d 425, 427-28 (1979).\nThat authority does not, however, decide the case before us. Candelaria specifically left open the question of whether \u201cimaginary stress[] is sufficient to establish an injury \u2018arising out of\u2019 the employment.\u201d 105 N.M. at 175, 730 P.2d at 478. For a discussion of the issue, Candelaria referred the reader to two decisions\u2014McGarrah v. State Accident Ins. Fund Corp., 296 Or. 145, 675 P.2d 159 (1983), and Williams v. Western Elec. Co., 178 N.J.Super. 571, 429 A.2d 1063 (App.Div.1981)\u2014 which stated that benefits would not be recoverable in such circumstances, but it did not express approval of either opinion.\nWe start with the pertinent statutory language. Section 52-l-28(A) states:\nClaims for workmen\u2019s compensation shall be allowed only:\n(1) when the workman has sustained an accidental injury arising out of, and in the course of, his employment;\n(2) when the accident was reasonably incident to his employment; and\n(3) when the disability is a natural and direct result of the accident.\nIn our view, this language 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\u2019s employment, but the accident must also be \u201creasonably incident\u201d to the work and the disability must be a \u201cnatural and direct result\u201d of the accident. We see no room in this language for a disability that may have been caused by something that is only imagined. See Fox v. Alascom, Inc., 718 P.2d 977, 983 (Alaska 1986) (awarding compensation based on imaginary stress is inconsistent with \u201carising out of\u201d language).\nWe are buttressed in this conclusion by the lack of support for worker\u2019s position in the laws of other states. Only one reported decision would support the result he seeks. Deziel v. Difco Laboratories, Inc., 403 Mich. 1, 268 N.W.2d 1 (1978), ruled that a worker is entitled to benefits if he or she honestly perceives that the disability was caused by the work. As noted by Professor Larson, however, the Michigan legislature has overruled Deziel by providing that \u201c \u2018[mjental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.\u2019 \u201d IB A. Larson, The Law of Workmen\u2019s Compensation \u00a7 42.23(d), at 7-931 (1991) (quoting Mich.Comp.Laws Ann. \u00a7 418.301(2) (West Supp.1984)). The rule stated in Deziel has been rejected by more than just the legislature of the state in which the opinion was rendered; it has also been rejected by virtually every court that has considered the matter. According to Larson, the only kind words for the opinion appear in Albertson\u2019s, Inc. v. Worker\u2019s Compensation Appeals Board of California, 131 Cal.App.3d 308, 182 Cal.Rptr. 304 (1982). Yet even in Albertson\u2019s there were undeniable facts that contributed to the stress upon worker (such as an unjustified layoff) and the court required that employment play an \u201cactive role\u201d in the development of the mental disability and not \u201cmerely provide[] a stage for the event.\u201d Id., 182 Cal.Rptr. at 309 (quoting Transactron, Inc. v. Workers\u2019 Comp. Appeals Bd., 68 Cal.App.3d 233, 238, 137 Cal.Rptr. 142, 145 (1977)).\nAs we understand the district court\u2019s findings, worker\u2019s perception of harassment was not caused by anything that happened at work. Presumably his mental condition was such that he would perceive harassment regardless of what actually occurred. The job was the stage upon which worker\u2019s imagination performed, but we cannot say that the job played an \u201cactive role\u201d in creating the disability. Thus, even applying the extant law of other jurisdictions most favorable to worker, the findings here require that he be denied benefits. We therefore affirm the district court.\nDESTRUCTION OF DOCUMENTS\nAs an alternative ground for reversal, worker contends that the city lost or destroyed documents relating to his employment. He contends that we should presume from that loss or destruction that the documents were favorable to him and that therefore he should be awarded compensation.\nEven were we to adopt worker\u2019s legal theory, we could not grant the relief sought because worker has failed to establish the factual predicate for his contention. We note that the district court refused worker\u2019s requested finding of fact with respect to loss or destruction of documents. Worker cites to nothing in the record supporting the claim of loss or destruction except for a reference to destruction of documents of the employee assistance program. But employer points out in its brief that the record indicates that worker\u2019s attorney had been provided the pertinent file, and worker filed no reply brief to challenge that assertion. Other documents that were lost or destroyed were not the employer\u2019s documents.\nThus, there is support in the record for the district court\u2019s refusal of the requested finding regarding loss or destruction of documents, and we must reject worker\u2019s claim for relief predicated on such alleged loss or destruction.\nCONCLUSION\nFor the foregoing reasons we affirm the judgment of the district court.\nIT IS SO ORDERED.\nALARID, C.J., and PICKARD, J., concur.", "type": "majority", "author": "HARTZ, Judge." } ], "attorneys": [ "James R. Toulouse, John G. Travers, Toulouse & Associates, P.A., Albuquerque, for plaintiff-appellant.", "David S. Campbell, City Atty., David Suffling, Asst. City Atty., Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "819 P.2d 1342\nErnest GREEN, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Employer and Self-Insurer, Defendant-Appellee.\nNo. 12701.\nCourt of Appeals of New Mexico.\nSept. 5, 1991.\nCertiorari Denied Oct. 18, 1991.\nJames R. Toulouse, John G. Travers, Toulouse & Associates, P.A., Albuquerque, for plaintiff-appellant.\nDavid S. Campbell, City Atty., David Suffling, Asst. City Atty., Albuquerque, for defendant-appellee." }, "file_name": "0784-01", "first_page_order": 814, "last_page_order": 817 }