{ "id": 4247446, "name": "Edward VILLA, Worker-Appellee, v. CITY OF LAS CRUCES, self-insured, Employer/Insurer-Appellant", "name_abbreviation": "Villa v. City of Las Cruces", "decision_date": "2010-07-22", "docket_number": "No. 29,456; No. 32,561", "first_page": "668", "last_page": "679", "citations": [ { "type": "official", "cite": "148 N.M. 668" }, { "type": "parallel", "cite": "241 P.3d 1108" }, { "type": "parallel", "cite": "2010-NMCA-099" } ], "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": "111 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715074 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "552-53, n. 2" }, { "page": "736-37, n. 2" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0550-01" ] }, { "cite": "113 N.M. 85", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723314 ], "weight": 5, "pin_cites": [ { "page": "89-90" }, { "page": "331-32" }, { "page": "89" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0085-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "2001-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183113 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 25" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0272-01" ] }, { "cite": "108 N.M. 124", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592854 ], "weight": 2, "pin_cites": [ { "page": "127-28" }, { "page": "366-67" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0124-01" ] }, { "cite": "2007-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692438 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0605-01" ] }, { "cite": "2005-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929180 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0497-01" ] }, { "cite": "2010-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247680 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0405-01" ] }, { "cite": "2009-NMCA-041", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244363 ], "weight": 19, "pin_cites": [ { "page": "\u00b6\u00b6 8, 23" }, { "page": "\u00b6 15" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0170-01" ] }, { "cite": "100 N.M. 146", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588624 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "148" }, { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/nm/100/0146-01" ] }, { "cite": "90 N.M. 629", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868205 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "630" }, { "page": "479" } ], "opinion_index": 1, "case_paths": [ "/nm/90/0629-01" ] }, { "cite": "66 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846992 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "338" }, { "page": "1004" } ], "opinion_index": 1, "case_paths": [ "/nm/66/0335-01" ] }, { "cite": "1998-NMCA-078", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834202 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 1, "case_paths": [ "/nm/125/0242-01" ] }, { "cite": "102 N.M. 609", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580164 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "611" }, { "page": "884" } ], "opinion_index": 1, "case_paths": [ "/nm/102/0609-01" ] }, { "cite": "2009-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244481 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nm/146/0070-01" ] }, { "cite": "2002-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15539 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/133/0020-01" ] }, { "cite": "2001-NMCA-076", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183147 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 1, "case_paths": [ "/nm/131/0156-01" ] }, { "cite": "2010-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245031 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 1, "case_paths": [ "/nm/147/0512-01" ] }, { "cite": "113 N.M. 85", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723314 ], "weight": 2, "pin_cites": [ { "page": "89-90" }, { "page": "331-32" } ], "opinion_index": 1, "case_paths": [ "/nm/113/0085-01" ] }, { "cite": "2010-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247680 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 22-30" } ], "opinion_index": 1, "case_paths": [ "/nm/148/0405-01" ] } ], "analysis": { "cardinality": 1346, "char_count": 39694, "ocr_confidence": 0.685, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.31862340236824616 }, "sha256": "b3794ce5d83a0aca20802196c4a7b381021cbd8db3d70a97219778d2498fb39e", "simhash": "1:a1c8161f1eb3c6f0", "word_count": 6401 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I CONCUR: JAMES J. WECHSLER, Judge.", "TIMOTHY L. GARCIA, Judge (specially concurring)." ], "parties": [ "Edward VILLA, Worker-Appellee, v. CITY OF LAS CRUCES, self-insured, Employer/Insurer-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} City of Las Cruces (Employer) appeals from a workers\u2019 compensation judge\u2019s (WCJ) compensation order awarding Edward Villa (Worker) disability benefits. The issue is whether Worker\u2019s on-the-job intoxicated state barred him from recovery under the Workers\u2019 Compensation Act (the Act). The issue requires us to consider the meaning and application of two sections of the Act, namely, NMSA 1978, Section 52-1-11 (1989), under which the intoxication would completely bar Worker\u2019s recovery, and NMSA 1978, Section 52-1-12.1 (2001), under which Worker would receive 90% of his entitlement even though he was intoxicated. Resolution of the issue revolves around the different causation wording in the statutes. We are met with statutory ambiguity that forces us to choose between two undesirable results. We affirm, holding that the WCJ properly applied Section 52-1-12.1, given the substantial evidence that supported a contributing cause to Worker\u2019s injury, in addition to Worker\u2019s intoxication. We also hold that the WCJ properly held Section 52-1-11 inapplicable to bar recovery because there was substantial evidence to support the WCJ\u2019s factual determination that Worker\u2019s injury was not \u201cwillfully suffered\u201d by him.\nA. BACKGROUND\n1. Factual Background\n{2} We take the facts from the WCJ\u2019s findings of fact. On the accident date, Worker\u2019s job was to operate a garbage truck. He did not clock in as he was supposed to when he arrived at work probably between 4:00 and 4:30 a.m., but instead he went directly to drive the truck. At one point during his work, when Worker was picking up a dumpster with the truck forks, the dumpster slipped from the forks and fell into the truck hopper. To pull the dumpster from the truck, Worker and his supervisor, Jim Maese, climbed up on the truck on opposite sides to attach chains to the dumpster so that a grappler, operated by Fred Tarango, could pull the dumpster out. As he started to reach across to hand his end of the chain to Maese, Worker lost his balance on the narrow ledge on which he was standing and he fell to the ground, seriously injuring himself. The accident happened at about 5:45 a.m.\n{3} The day before the accident, after Worker completed his work shift, Worker and a co-worker went to Worker\u2019s house with a twelve-pack of beer that the two shared; they later went to a river where they finished the beer. Worker was then dropped off at a bar where he had at least one or two more beers, after which he was driven home. The morning of the accident, the same co-worker who was with Worker the night before picked Worker up, and they went to work.\n{4} After the accident, at about 9:30 a.m., Worker\u2019s blood was drawn and tested at a hospital. The blood-test results showed that Worker\u2019s blood-alcohol level was .12, which was well over the New Mexico legal driving limit. Further, the hospital records indicated that alcohol was smelled on Worker\u2019s breath. The WCJ found that the evidence showing Worker\u2019s voluntary intoxication was abundant. The evidence included Worker\u2019s testimony and deposition admissions in regard to his alcohol intake, the co-worker\u2019s testimony, Worker\u2019s failure to clock in so that he would avoid seeing supervisory personnel, and the smell of alcohol on his breath at the hospital. The WCJ stated that she had \u201cno doubt but that Worker was legally drunk in accordance with DWI standards both when he started work and at the time of the accident.\u201d\n{5} However, in assessing Worker\u2019s intoxication for the purposes of recovery of benefits, the WCJ also considered the following. Worker had been driving the garbage truck the morning of the accident for at least an hour before the accident and evidently had not hit anything; he had been walking round the top of the truck before Maese arrived and had no difficulty; Tarango did not notice a problem with Worker\u2019s demeanor; and Worker evidently was able to climb up on the truck in the presence of Maese and Tarango neither of whom noticed anything amiss.\n{6} The WCJ \u201c[could] only conclude\u201d that Worker was still under the influence of alcohol when he started work on the day of the accident, when the accident occurred, and when he was treated after the accident at the hospital. Yet the WCJ also found that \u201c[t]he fact that Worker was inebriated ... does not resolve the legal effect of it on his claim for ... benefits.\u201d This finding moves us into consideration of the two statutes in question relating to an intoxicated worker\u2019s recovery of benefits and the WCJ\u2019s rationale for determining that Worker was not completely barred from recovery and was limited to a 90% recovery.\n2. The WCJ\u2019s Legal Analysis\n{7} In her findings and conclusions, the WCJ set out her analysis of how the law applied to the fact of Worker\u2019s intoxication and of the causal relationship of the intoxication to his accident and injury. The WCJ first set out Section 52-1-11 in relevant part: \u201cNo compensation shall become due or payable from any employer ... in event such injury was occasioned by the intoxication of such worker or willfully suffered by him or intentionally inflicted by himself.\u201d After indicating that Worker neither willfully nor intentionally injured himself, but \u201cslipped and fell,\u201d the WCJ concentrated on the meaning and effect of the words \u201coccasioned by.\u201d The WCJ determined that \u201c[t]o the extent \u2018occasioned by means \u2018caused by,\u2019 Employer has not met it[s] burden of proving that Worker\u2019s accident was caused by his being under the influence of alcohol or intoxicated.\u201d Acknowledging that she had no doubt as to Worker\u2019s intoxicated state, the WCJ determined that \u201cintoxication must be the proximate cause of the accident\u201d and that, based on evidence of Worker\u2019s conduct and what others noticed about his demeanor, \u201cone cannot say that it was [the proximate cause]: Worker was working on a very small ledge, and anyone might have slipped off it while trying to hand his portion of the chain to Maese.\u201d Therefore, the WCJ found that, \u201c[g]iven all of this, one cannot conclude that the intoxication was the cause of the fall, or that the intoxication occasioned the fall.\u201d\n{8} After eliminating Section 52-1-11 as a bar to Worker\u2019s recovery of benefits, the WCJ turned to Section 52-1-12.1, which provides for a reduction in benefits by 10% when a person is voluntarily intoxicated and the intoxication is \u201ca contributing cause to the injury.\u201d The WCJ determined that under Section 52-1-12.1 the blood-alcohol test performed on Worker could not be used as evidence of intoxication to reduce benefits because the testing did not meet the standards required and did not comply with federal workplace testing procedures. See \u00a7 52-1-12.1 (stating that for test results considered in determining intoxication \u201cthe test and testing procedures [must] conform to the federal department of transportation procedures for transportation workplace ... alcohol testing programs and the test [must be] performed by a laboratory certified to do the testing by the ... department\u201d (internal quotation marks omitted)). But the WCJ indicated that the other evidence of intoxication could be considered under Section 52-1-12.1, and thus:\nWorker\u2019s voluntary intoxication contributed to his accident and injury because, having lost his balance on the narrow ledge, were he not impaired, he very likely would have been able to catch himself, and had he not been impaired, he would have been able to complete the task of attaching the chain on his side as easily as Maese, who was not intoxicated, was able to do.\nThe WCJ therefore determined that the 10% reduction of benefits pursuant to Section 52-1-12.1 was appropriate.\n{9} The WCJ entered the following pertinent conclusions of law:\n9. Worker was intoxicated ... at the time of his accident; his accident and injury were not occasioned by his intoxication.\n10. Worker\u2019s accident and injury were not willfully caused by him or intentionally inflicted by him.\n11. Worker\u2019s intoxication was a contributing factor to his accident, thus entitling Employer to a [ 10%] reduction in Worker\u2019s compensation rate.\n12. The blood[-]alcohol test results from Worker did not meet the requirements of Section 52-1-12.1, but were valid and reliable and admissible on other grounds, and were relevant to the adjudication of the case.\n{10} Employer appeals the WCJ\u2019s compensation order which adopted her findings of fact and conclusions of law. Employer\u2019s stated points on appeal are (1) the WCJ\u2019s conclusion of contributory causation is tantamount to a conclusion of proximate causation, such that the contrary conclusion that intoxication was not the proximate cause of the injuries constituted legal error; and (2) the WCJ erred when she did not conclude that Worker\u2019s injuries were willfully suffered by him when he climbed on top of the truck while intoxicated.\nB. DISCUSSION\n{11} We first set out Sections 52-1-11 and 52-1-12.1. We also set out NMSA 1978, Section 52-1-12 (1989), because its wording is significant in our discussion. We then address the meaning and application of the words \u201coccasioned by\u201d intoxication in Section 52-1-11 and \u201ca contributing cause\u201d to the injury in Section 52-1-12.1. Last, we address the meaning and application of the words \u201cwillfully suffered by him or intentionally inflicted by himself\u2019 in Section 52-1-11.\n1. \u201cOccasioned By\u201d and \u201ca Contributing Cause\u201d\nStandard of Review\n{12} Statutory construction calls for de novo review. Ortiz ex rel. Baros v. Overland Express, 2009-NMCA-041, \u00b6\u00b6 8, 23, 146 N.M. 170, 207 P.3d 1147, rev\u2019d on other grounds, 2010-NMSC-021, 148 N.M. 405, 237 P.3d 707. We review the WCJ\u2019s application of the law to the facts de novo. Tom Growney Equip. Co. v. Jouett, 2005-NMSC-015, \u00b6 13, 137 N.M. 497, 113 P.3d 320. In resolving evidence-sufficiency issues, in cases arising under the Act, we engage in whole-record review to determine whether there is substantial evidence to support the result. Leonard v. Payday Prof'l, 2007-NMCA-128, \u00b6 10, 142 N.M. 605, 168 P.3d 177; Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127-28, 767 P.2d 363, 366-67 (Ct.App.1988) (explaining in more detail whole-record review), holding modified on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148.\nApproach to Interpretation of the Act\n{13} We recognize that the Act \u201creflects a deliberative balance between the interests of employers and employees,\u201d and we are to be careful when interpreting the Act not to upset that balance through unwarranted \u201cjudicial surgery.\u201d Ortiz, 2009-NMCA-041, \u00b6 15, 146 N.M. 170, 207 P.3d 1147 (internal quotation marks and citation omitted). We are to \u201cread related statutes in harmony so as to give effect to all provisions.\u201d Id. \u00b6\u00b6 23-24 (internal quotation marks and citation omitted). When interpreting statutes, \u201c[o]ur ultimate goal ... is to ascertain and give effect to the intent of the Legislature.\u201d State v. Smith, 2004-NMSC-032, \u00b6 8, 136 N.M. 372, 98 P.3d 1022 (internal quotation marks and citation omitted). In doing so, we are to apply the various principles set out by our Supreme Court in Smith. See id. \u00b6\u00b6 9-10.\nThe Statutes\n{14} Section 52-1-11, which relates to intoxication, reads:\nNo compensation shall become due or payable from any employer under the terms of the ... Act ... in [the] event such injury was occasioned by the intoxication of such worker or willfully suffered by him or intentionally inflicted by himself.\n{15} Section 52-1-12, which relates to drugs, reads: \u201cNo compensation is payable ... if the injury ... was occasioned solely by the person being under the influence of a depressant, stimulant or hallucinogenic drug ... or under the influence of a narcotic drug[.]\u201d\n{16} Section 52-1-12.1, which relates to both intoxication and drugs, in pertinent part, reads:\nThe compensation otherwise payable a worker pursuant to the ... Act ... shall be reduced ten percent in cases in which the injury to or death of a worker is not occasioned by the intoxication of the worker as stated in Section 52-1-11 ... or occasioned solely by drug influence as described in Section 52-1-12 ..., but voluntary intoxication or being under the influence of a depressant, stimulant or hallucinogenic drug ... or under the influence of a narcotic drug ... is a contributing cause to the injury or death.\n{17} We read the WCJ\u2019s findings and conclusions to constitute and result in a holding that Worker\u2019s injury was not \u201coccasioned by\u201d his intoxication under Section 52-1-11 because it was not the proximate cause, meaning the sole cause, of his injury, but instead that the intoxication was no more than a proximate cause under Section 52-1-12.1, meaning \u201ca contributing cause\u201d to the injury.\nReconciliation of the Statutes\n{18} The Legislature has left the law in a bit of a lurch. What did the Legislature intend when completely barring a worker\u2019s recovery if his injury was \u201coccasioned by\u201d intoxication under Section 52-1-11, yet allowing a 90% recovery or stated another way, punishing the worker by 10%, when the intoxication was \u201ca contributing cause\u201d to his injury under Section 52-1-12.1? This perplexing question was first discussed in this Court\u2019s decision in Ortiz, 2009-NMCA-041, \u00b6 24 n. 1, 146 N.M. 170, 207 P.3d 1147. We thought it appropriate to provide the following comments by way of a footnote in relation to treating methamphetamine and amphetamine use as a form of intoxication, in which event we saw \u201c[a] conflict between Section 52-1-11 and Section 52-1-12.1.\u201d Ortiz, 2009-NMCA-041, \u00b6 24 n. 1, 146 N.M. 170, 207 P.3d 1147.\nCase law has interpreted the phrase \u201coccasioned by\u201d in Section 52-1-11 as a requirement that the employer prove that intoxication was the \u201cproximate cause\u201d of the accident. The uniform jury instruction on causation, UJI 13-305 NMRA, states that an act is a \u201cproximate cause\u201d of an injury if it \u201ccontributes to bringing about the injury.\u201d Furthermore, a proximate cause \u201cneed not be the only explanation for the injury, nor the reason that is nearest in time or place,\u201d but will be sufficient \u201cif it occurs in combination with some other cause to produce the result.\u201d This can be interpreted to mean that the requirement in Section 52-1-11 that the injury be \u201coccasioned by\u201d intoxication will be met if an employer is able to show that intoxication was a contributing cause to the injury. While Section 52-1-11 provides a complete defense, Section 52-1-12.1 provides employers with a partial defense ... when intoxication is a \u201ccontributing cause\u201d to a worker\u2019s injury or death. Under this analysis these two statutes are irreconcilable in their results.\nOrtiz, 2009-NMCA-041, \u00b6 24 n. 1, 146 N.M. 170, 207 P.3d 1147 (citations omitted). In regard to this irreconcilability of the statutes, we stated that it was \u201cagain leaving] it to the Legislature to remedy this potential conflict.\u201d Id.\n{19} Our case law, indeed, has defined \u201coccasioned by\u201d as used in Section 52-1-11 to be a proximate-cause measure. See Estate of Mitchum v. Triple S Trucking, 113 N.M. 85, 89-90, 823 P.2d 327, 331-32 (Ct.App.1991) (holding that under Section 52-1-11 an employer must prove that the worker\u2019s intoxication \u201cwas a proximate cause of the resulting injury,\u201d while at the same time stating that under the statute the employer needed to show that the intoxication was \u201conly a contributing cause\u201d). In Estate of Mitchum, this Court stated that its scrutiny of Section 52-1-11 indicated that, in enacting this section, the Legislature \u201cfollowed the approach taken by a majority of states requiring proof that the worker\u2019s intoxication constituted a proximate cause of his ... injury.\u201d Estate of Mitchum, 113 N.M. at 89, 823 P.2d at 331. The Court clarified this approach by stating that \u201cintoxication need not be shown to be the sole cause of the injury, but only a contributing cause.\u201d Id. We understand the Court to have determined that the words \u201cinjury ... occasioned by the intoxication\u201d in Section 52-1-11 mean that the worker\u2019s intoxication is a proximate cause of the injury and not necessarily the sole cause of the injury. And we understand the Court to have used the words \u201ca contributing cause\u201d in the same vein.\n{20} We place no precedential value on the Court\u2019s proximate cause analysis in Estate of Mitchum. Estate of Mitchum was decided before the enactment of Section 52-1-12.1, which explains why it did not address the language in that Section. Because Estate of Mitchum essentially holds that \u201coccasioned by\u201d means that an employer need show \u201conly a contributing cause,\u201d the holding cannot stand in the face of Section 52-1-12.1\u2019s almost identical language. One can only speculate whether the Legislature borrowed either language or concept from Estate of Mitchum in enacting Section 52-1-12.1, or meant by enactment of Section 52-1-12.1 to say that under Section 52-1-11 an employer must prove that an employee\u2019s intoxication was something different than \u201ca contributing cause.\u201d\n{21} Employer argues that two factual determinations of the WCJ critical to her ultimate determination are mutually exclusive and therefore irreconcilable. Employer points out that, on the one hand, \u201cthe WCJ found that \u2018having lost his balance on the narrow ledge,\u2019 were he not impaired, he would have been able to catch himself and complete the task at hand[,] concluding that Worker\u2019s intoxication contributed to his accident and injury.\u201d Yet, Employer also points out that the WCJ, on the other hand, found that Worker\u2019s injury was not occasioned by his intoxication because anyone might have slipped off the ledge where he was working. Thus, Employer argues, \u201c[o]ne finding is that, but for the inebriation, Worker would have caught himself, resulting in no fall. The other is that the inebriation added little to what was happening.\u201d\n{22} Employer argues through an elaborate analysis that the statutes can nevertheless be read in harmony and that the Legislature intended through Section 52-1-11 that common law proximate cause be applied. Employer submits in its brief in chief that, applying a common law proximate-cause theory, we are to distinguish proximate cause from other causes acting at the same time \u201cthrough the lens of objective foreseeability,\u201d that is, by looking at \u201cthat which is objectively reasonable to expect, not merely what might conceivably occur.\u201d (Emphasis omitted.) (Internal quotation marks and citation omitted.) Thus, Employer continues, we are to distinguish between causal factors that pass the objectively reasonable-foreseeability test (\u201cproximate contributing causal factors\u201d) from causal factors that do not pass that test (\u201clesser contributory eause[s]\u201d). Following that intention and guideline, Employer argues that we can \u201cavoid reading unnecessary conflict between the two statutes\u201d and apply Section 52-1-12.1 \u201conly when (a) the intoxication does not rise to the level of meeting the \u2018objectively reasonable\u2019 foreseeability test and (b) the intoxication is nevertheless deemed part of the aggregate of contributors to an injury, i.e.[,] a lesser contributory cause.\u201d (Emphasis omitted.)\n{23} Applying its analysis, Employer concludes that the vast spread between no recovery and a 90% recovery \u201csuggests that the [Legislature envisioned that the causation threshold is inversely proportionate to the outcome\u201d; that is, \u201c[pjroximate causation by intoxication would obliterate Worker\u2019s recovery. However, a lesser contributor gets a 90% recovery for Worker.\u201d Employer asserts that \u201c[o]nly with this breadth of difference in the degree of causal effect is the legislative intent served.\u201d\n{24} In reply to an argument of Worker, Employer also argues that the Legislature did not intend \u201coccasioned by\u201d to mean \u201csolely by.\u201d It points to Section 52-1-12, which deals with drug use and was the subject of Ortiz, and which, different than in Section 52-1-11, states the standard of \u201coccasioned solely by.\u201d Employer argues that if the Legislature wanted to limit \u201coccasioned by\u201d in the foregoing manner, it could have changed the wording in Section 52-1-11 to \u201coccasioned solely by\u201d when it enacted Section 52-1-12.1. Further, Employer sees the Legislature as purposefully expressing a \u201cmost significant cause of the accident in Section 52-1-11\u201d as distinguished from a \u201cless significant cause of the accident in Section 52-1-12.1,\u201d thereby becoming \u201ca determination of the relative impact of the causal factors in the outcome____ Section 52-1-11 points to the cause of the injury. Section 52-1-12.1 points to that which had an impact on the injury.\u201d\n{25} We reject Employer\u2019s arguments. We see no indication from the Act or two statutes in question, including Section 52-1-12, that the Legislature intended \u201coccasioned by\u201d in Section 52-1-11 when set against \u201ca contributing cause\u201d in Section 52-1-12.1 to require a weighing of the significance or strength of any causative factor, or to analyze causative factors by whether the risk of injury was objectively foreseeable. As we discuss later in this opinion, to adopt Employer\u2019s analytic approach would, we believe, go beyond our interpretive authority. Under the circumstances in this case, we prefer the least judicially invasive route into ambiguous legislation in order to arrive at a decision whether Worker is totally barred or entitled to 90% of his benefit.\n{26} Choosing an analytic approach in this case is no easy task given the ambiguities created by the combination of our ease law, the use of different causation language in Sections 52-1-11, 52-1-12, and 52-1-12.1, and the Legislature having left Section 52-1-11 unchanged when it enacted Sections 52-1-12 and 52-1-12.1. See Smith, 2004-NMSC-032, \u00b6 10, 136 N.M. 372, 98 P.3d 1022 (\u201c[W]hen a statute is ambiguous, we may consider the clear policy implications of its various constructions.\u201d).\n{27} It strikes us that a determination of causation, as that concept is mired in ambiguity under the statutes, more soundly defaults to the approach followed by the WCJ than to the approach Employer advances. As we understand the WCJ\u2019s approach, it was that, while Worker\u2019s intoxication was a contributing cause of his injury, the injury could also be explained in part by another contributing cause shown by the evidence, moving the WCJ to apply Section 52-1-12.1. The WCJ made findings of fact in regard to each causative factor. We cannot say, looking at the whole record, that either of the WCJ\u2019s findings dealing with causation was not supported by substantial evidence.\n{28} Of course, one will still ask, what then does \u201coccasioned by\u201d in Section 52-1-11 mean? While a plain reading of \u201ca contributing cause\u201d in Section 52-1-12.1 may be one contributing or proximate cause among one or more other contributing or proximate causes, how does that meaning square with Section 52-1-11?\n{29} The WCJ could rationally infer from the evidence that there were reasons why Worker slipped and fell that were attributable as much, if not more, to Worker\u2019s precarious position and activities while standing on the narrow ledge of the truck, as to his intoxication. We give deference to a WCJ\u2019s findings in regard to conflicting evidence of causation. See Herman v. Miners\u2019 Hosp., 111 N.M. 550, 552-53, n. 2, 807 P.2d 734, 736-37, n. 2 (1991) (stating that the ease presented \u201cconflicting evidence that required the finder of fact to determine [the] facts based on its evaluation of credibility, demeanor, and other relevant factors, not evidence that required the fact finder to speculate as to causation,\u201d and indicating that the fact finder is given deference when faced with conflicting evidence).\n{30} We conclude that the WCJ\u2019s decision was not erroneous. It is supported by our reading of various statutes and also by our Supreme Court\u2019s recent decision in Ortiz, which reversed this Court\u2019s Ortiz decision. First, the enactment dates and language used in the three pertinent statutes are significant. Section 52-1-11, relating to intoxication and using \u201coccasioned by,\u201d was enacted in 1929. 1929 N.M. Laws, ch. 113, \u00a7 8. Section 52-1-12, relating to drugs and using \u201coccasioned solely by,\u201d was enacted in 1971. 1971 N.M. Laws, ch. 55, \u00a7 1. Section 52-1-12.1, relating to both intoxication and drugs and using \u201ca contributing cause,\u201d was enacted in 2001. 2001 N.M. Laws, ch. 87, \u00a7 1. We note that Section 52-1-10.1, relating to aliocation of fault and the employer\u2019s right to reimbursement from proceeds recovered against the wrongdoer and using the terms \u201cfault\u201d and \u201cproximately caused,\u201d was enacted in 1987. 1987 N.M. Laws, ch. 141, \u00a7 4.\n{31} The Legislature did not change \u201coccasioned by\u201d in Section 52-1-11 (intoxication) when it enacted Section 52-1-12 (drugs) years later using \u201coccasioned solely by.\u201d The Legislature did not change either of the foregoing sections when it enacted Section 52-1-12.1 (intoxication and drugs) years later using \u201ca contributing cause.\u201d Nor did the Legislature change any of the language in Sections 52-1-11 or 52-1-12 when it enacted Section 52-1-10.1 using \u201cfault\u201d and \u201cproximately caused,\u201d terms that, in the context of that section\u2019s allocation of fault based on percentage of fault, appear to lend themselves more to a comparative or weighted-fault concept than to the dichotomies created in the other sections that appear to create two dispositions only, one a bar to recovery and the other a ten-percent reduction in benefits.\n{32} As these statutes stand, two conclusions appear inescapable. First, were Section 52-1-11 to be read as calling for an evaluative-causation standard such as primary or principal cause, and were Section 52-1-12.1 to be read as calling for a causation standard of a secondary or lesser cause, two different tests would exist under Sections 52-1-11 for intoxication and 52-1-12 for drugs; that is, Section 52-1-11 would call for a primary-cause standard with respect to intoxication, while 52-1-12 would call for a sole-cause standard with respect to drugs. We do not believe that the Legislature would intend this result. Furthermore, this difference would throw Section 52-1-12.1 completely off balance were it to be interpreted to call for a lesser-cause standard, since, while such a standard would be compatible with a Section 52-1-11 primary-cause standard, it would not be compatible with a Section 52-1-12 sole-cause standard. It is also significant, in our view, that the Legislature did not change the language in Sections 52-1-11 and 52-1-12 when initiating what appears to be a comparative or evaluative standard in Section 52-1-10.1. That a primary, lesser-evaluative-causation standard is not called for in the statutes is also borne out by the absence of any indication that the Legislature has adopted such a standard in any current statutory scheme outside of comparative-negligence or comparative-fault theory.\n{33} Further complicating matters is that Ortiz appears to implicitly confirm that a primary, lesser-cause standard is not called for in Section 52-1-12, even though the primary, lesser-evaluative-causation idea was not at issue in the case. In Ortiz, the Supreme Court discussed whether the worker\u2019s estate\u2019s recovery should be barred under Section 52-1-12 under a sole-cause test or whether it should be reduced by ten percent under Section 52-1-12.1. Ortiz, 2010-NMSC-021, \u00b6 22, 148 N.M. 405, 237 P.3d 707. The Court set out the WCJ\u2019s findings on the issue of causation, which were that the worker\u2019s accident was \u201coccasioned solely by\u201d his use of drugs and that the use of the drugs was \u201cthe exclusive proximate cause\u201d of the accident. Id. \u00b6 23 (emphasis omitted). The Court concluded that the evidence supporting the decision was not sufficient to establish that the worker\u2019s drug use was the sole cause of the accident, and the Court held that his benefits should be reduced ten percent. Id. \u00b6\u00b6 24, 31.\n{34} We must assume that the Legislature knows how to use causation language. Section 52-1-10.1 of the Act states, \u201cif the fault of the worker\u2019s employer ... is found to have proximately caused the worker\u2019s injury.\u201d The same words are found in NMSA 1978, Section 22-17-2(0(3) (2001), and in NMSA 1978, Section 30-35-2(A) (1963), and in several other statutes. The Legislature has in at least one statute, NMSA 1978, Section 56-7-1(A) and (B)(1) (2005), used \u201ccaused by or resulting from\u201d and also \u201ccause}] by}] or arise out of.\u201d Note that in the historical and statutory notes of that statute the former law is set out and that former law used the words \u201cprimary cause.\u201d The Legislature used \u201cinjury resulting from}] or occasioned by\u201d in our death-caused-by-railroad statute, NMSA 1978, \u00a7 41-2-4 (1973) (emphasis added). We have found nothing thus far showing a current statute using \u201cprimary cause\u201d or \u201cprincipal cause\u201d or even \u201csignificant cause,\u201d \u201cgreater cause,\u201d or \u201clesser cause,\u201d etc. We suspect that, in dealing with intoxication in the workers\u2019 compensation statutes, the Legislature intentionally omitted the word \u201cproximate\u201d because it saw no issue of foreseeability or sequence and perhaps no issue of direct, efficient cause.\n{35} The statutes leave what appears to be an unintended state of causation, created over time, under circumstances in which the Legislature may not have wanted to tinker with prior wording but nevertheless wanted to redevelop the law in a manner that refined a worker\u2019s right to benefits when alcohol or drug use might have in some manner caused or contributed to the worker\u2019s accident. We question whether the Legislature intended a worker to be barred from any recovery where alcohol or drug use was the sole cause of the accident, yet intended a reduction in recovery by only ten percent where alcohol or drug use was, for example, a 99% or 50% cause of an accident. Yet Section 52-1-12 and Section 52-1-12.1 addressed in Ortiz cause precisely that result, and the manner in which those two statutes and Section 52-1-11 are written, the inescapable conclusion is that Section 52-1-11 and Section 52-1-12.1 also cause precisely that result.\n{36} We have extended our interpretative authority as far as we care to extend it. While we are not particularly comforted by the approach we take, we are offered and we see no other approach that we can take without stepping on the policy prerogatives of the Legislature. We choose not to engage in an analysis that attempts to weigh or grade the nature of the various causes the evidence has produced. We think it unfortunate that the Legislature created a span of a complete bar on the one hand and a 90% recovery on the other hand, while leaving the language in the two statutes ambiguous.\n2. Willfulness\n{37} Section 52-1-11 provides that benefits will be denied if the injury was \u201cwillfully suffered by him or intentionally inflicted by himself.\u201d Citing a statement in Ortiz, Worker\u2019s view is that once it is determined that intoxication was but a contributing cause to the injury under Section 52-1-12.1, to determine that he willfully suffered the injury under Section 52-1-11 would nullify Section 52-1-12.1. See Ortiz, 2009-NMCA-041, \u00b6 24, 146 N.M. 170, 207 P.3d 1147 (stating that \u201c[i]t is contrary to logic to presume that the Legislature intended to allow employers to avoid the obligation under Section 52-1-12.1 to pay ninety percent of a compensation award when drug use is a contributing cause of injury by allowing them to argue that a worker\u2019s drug use resulted in a willfully suffered injury\u201d). We need not engage Worker\u2019s argument, nor do we care to comment on the statement in Ortiz. It appears to us that the WCJ determined from the evidence that Worker\u2019s behavior and conduct did not rise to the level of willfulness despite the indication of intoxication, and we will not hold as a matter of law that, under the Act, any degree of voluntary intoxication constitutes the willfulness element in Section 52-1-11.\n{38} Employer nevertheless points out that willfulness for purposes of Section 52-1-11 \u201crequires that the worker have knowledge of the peril and the ability to foresee the injury for which willful misconduct is to blame.\u201d Delgado, 2001-NMSC-034, \u00b6 25, 131 N.M. 272, 34 P.3d 1148 (internal quotation marks and citation omitted). Combining the foregoing and another test, Delgado held that \u201cwillfulness renders a worker\u2019s injury non-accidental, and therefore outside the scope of the Act, when: (1) the worker ... engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker ... expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury.\u201d Id. \u00b6 26. We will assume that our Supreme Court meant this test to apply when addressing willfulness under Section 52-1-11, although the Court\u2019s use of the term \u201cproximate cause\u201d with a citation to Estate of Mitchum causes some concerns about the validity of the test as it may be applied to Section 52-1-11. See Delgado, 2001-NMSC-034, \u00b6 29, 131 N.M. 272, 34 P.3d 1148.\n{39} Employer thus wants this Court to hold that, as a matter of law, under Delga do\u2019s test and as a per se willfulness, Worker\u2019s intoxicated condition bars his recovery. Delgado seems to indicate that one or more parts of the test require the fact finder to evaluate credibility and factually disputed circumstances. See id. \u00b6\u00b6 27-29. We will not delve more deeply into those indications. We determine that, in the present case, there was substantial evidence to support the WCJ\u2019s factual determinations relating to willfulness and that she correctly applied the law to the facts.\nC. CONCLUSION\n{40} We affirm the WCJ\u2019s compensation order in favor of Worker.\n{41} IT IS SO ORDERED.\nI CONCUR: JAMES J. WECHSLER, Judge.\nTIMOTHY L. GARCIA, Judge (specially concurring).", "type": "majority", "author": "SUTIN, Judge." }, { "text": "GARCIA, Judge\n(concurring).\n{42} I write to concur in the majority decision because the statutory conflict in this case is not reconcilable by any established basis of statutory construction. The means chosen by the majority to resolve the dilemma are in direct contradiction to one of the basic rules of statutory construction, that we will not read into a statute language that is not there. Reule Sun Corp. v. Valles, 2010-NMSC-004, \u00b6 15, 147 N.M. 512, 226 P.3d 611 (filed 2009). Under this decision, we are forced to add the word \u201csolely\u201d to the term \u201coccasioned by\u201d in Section 52-1-11 in order to avoid having two separate definitions and interpretations of the phrase \u201ccontributing cause\u201d in Section 52-1-12.1. Our ultimate interpretation also contradicts the Legislature\u2019s express use of the words \u201coccasioned by ... as stated in Section 52-1-11\u201d that were included in Section 52-1-12.1. This Court is only to resort to adding words into a statute when it cannot otherwise make sense of the language used. See State ex rel. Pub. Employees Ret. Ass\u2019n v. Longacre, 2001-NMCA-076, \u00b6 9, 131 N.M. 156, 33 P.3d 906, rev\u2019d on other grounds, 2002-NMSC-033, 133 N.M. 20, 59 P.3d 500. In order to resolve this case, it is unfortunate and a measure of last resort that this Court must now utilize such a rare exception to statutory construction that adds significant and material language into Section 52-1-11.\n{43} Employer presented an even more unappealing construction of the applicable statutes. Employer\u2019s solution would be to give \u201ccontributing cause\u201d two separate definitions and interpretations under Section 52-1-12.1. Employer\u2019s interpretation also contradicts our basic rules of statutory construction.\n{44} A statutory construction analysis begins by examining the words chosen by the Legislature and the plain meaning of those words. State v. Hubble, 2009-NMSC-014, \u00b6 10, 146 N.M. 70, 206 P.3d 579. \u201cUnder the plain meaning rule, when a statute\u2019s language is clear and unambiguous, we will give effect to the language and refrain from further statutory interpretation.\u201d Id. (internal quotation marks and citation omitted). We must give words their usual and ordinary meaning unless a contrary intent is clearly indicated. State ex rel. Duran v. Anaya, 102 N.M. 609, 611, 698 P.2d 882, 884 (1985). The statutory language \u201ccontributing cause\u201d is a common phrase and should generally be given its ordinary meaning. See Black\u2019s Law Dictionary 250 (9th ed.2009) (defining contributing cause as \u201c[a] factor that \u2014 though not the primary cause \u2014 plays a part in producing a result\u201d). Ortiz has effectively addressed the definition of contributing cause for the purposes of Section 52-1-12.1. Ortiz, 2010-NMSC-021, \u00b6\u00b6 22-30, 148 N.M. 405, 237 P.3d 707. Employer does not cite to, and we have not found, any precedent that allows the same phrase in a statute to have two different definitions or meanings when it is applied within the same statutory scheme and subject matter. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep\u2019t, 1998-NMCA-078, \u00b6 10, 125 N.M. 244, 959 P.2d 969 (stating that this Court will not consider propositions that are not supported by cited authority). In addition, Employer\u2019s statutory construction would create a new conceptual application of causation. Employer would replace the proximate cause analysis of \u201coccasioned by\u201d that was established in Estate of Mitchum with one that utilizes \u201coecasioned primarily by\u201d or \u201coccasioned principally by\u201d under Section 52-1-11. See Estate of Mitchum, 113 N.M. at 89-90, 823 P.2d at 331-32. Again this novel concept of primary causation cannot be found in any similar statutory analysis of causation in New Mexico, and no authority has been cited by Employer to support such a concept. See ITT Educ. Servs., 1998-NMCA-078, \u00b6 10, 125 N.M. 244, 959 P.2d 969.\n{45} It is the longstanding duty of our courts to reconcile different statutory provisions so as to make them consistent, harmonious, and sensible. See El Paso Elec. Co. v. Milkman, 66 N.M. 335, 338, 347 P.2d 1002, 1004 (1959). We have also stated that where there is ambiguity created by statutes, the court will consider all existing statutes relating to the same subject so that, if possible, all of the acts will be made operative. Runyan v. Jaramillo, 90 N.M. 629, 630, 567 P.2d 478, 479 (1977). We must consider the language of an act as a whole and construe each part in connection with every other part so as to produce a harmonious whole. Westgate Families v. County Clerk, 100 N.M. 146, 148, 667 P.2d 453, 455 (1983). I am only concurring with the interpretation of Sections 52-1-11 and 52-1-12.1 because the Employer\u2019s interpretation of these statutes is equally weak, and I cannot find any support for Employer\u2019s position in our precedent or the principles of statutory construction. Even if Employer\u2019s interpretation of \u201coccasioned primarily by\u201d were to be adopted by this Court, the district court did not err in concluding that Worker\u2019s injuries were not occasioned primarily by intoxication. The conclusion of equal causation between the two different causes present at the time of the accident was also supported by the evidence. The outcome of the case would not have changed.\n{46} We have now done our part to interpret the irreconcilable language that was utilized into Section 52-1-12.1. I would hope that the Legislature will now utilize its authority and policy-making prerogative to clarify its intent and revisit the wording in Sections 52-1-11 and 52-1-12.1.", "type": "concurrence", "author": "GARCIA, Judge" } ], "attorneys": [ "Rod Dunn, Rio Rancho, NM, for Appellee.", "Holt Babington Mynatt P.C., Catherine Quinones, Las Cruces, NM, for Appellant." ], "corrections": "", "head_matter": "2010-NMCA-099\n241 P.3d 1108\nEdward VILLA, Worker-Appellee, v. CITY OF LAS CRUCES, self-insured, Employer/Insurer-Appellant.\nNo. 29,456.\nCourt of Appeals of New Mexico.\nJuly 22, 2010.\nCertiorari Denied, Sept. 23, 2010,\nNo. 32,561.\nRod Dunn, Rio Rancho, NM, for Appellee.\nHolt Babington Mynatt P.C., Catherine Quinones, Las Cruces, NM, for Appellant." }, "file_name": "0668-01", "first_page_order": 702, "last_page_order": 713 }