{ "id": 1555198, "name": "Anita LOSINSKI, Plaintiff-Appellee, v. DRS. CORCORAN, BARKOFF AND STAGNONE, P. A., Employer, and Dodson Insurance Group, Insurer, Defendants-Appellants", "name_abbreviation": "Losinski v. Drs. Corcoran, Barkoff & Stagnone, P. A.", "decision_date": "1981-11-03", "docket_number": "No. 5079", "first_page": "79", "last_page": "81", "citations": [ { "type": "official", "cite": "97 N.M. 79" }, { "type": "parallel", "cite": "636 P.2d 898" } ], "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": "89 N.M. 299", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864653 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0299-01" ] }, { "cite": "70 N.M. 468", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852077 ], "weight": 4, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0468-01" ] }, { "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": "47 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562302 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0279-01" ] }, { "cite": "89 N.M. 60", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865581 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0060-01" ] }, { "cite": "58 N.M. 183", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587590 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0183-01" ] }, { "cite": "96 N.M. 577", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577332 ], "weight": 4, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0577-01" ] } ], "analysis": { "cardinality": 336, "char_count": 4937, "ocr_confidence": 0.761, "pagerank": { "raw": 1.3004491441766565e-07, "percentile": 0.622038002987819 }, "sha256": "73181091e233bf4f638d37ea1acf67b8502bf20a0e8ff9a87621579cb68ed8ff", "simhash": "1:1e988d4a9a0128d5", "word_count": 816 }, "last_updated": "2023-07-14T20:10:51.585150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and DONNELLY, JJ., concur." ], "parties": [ "Anita LOSINSKI, Plaintiff-Appellee, v. DRS. CORCORAN, BARKOFF AND STAGNONE, P. A., Employer, and Dodson Insurance Group, Insurer, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendants appeal plaintiff\u2019s award of workmen\u2019s compensation benefits. The dis-positive issue is whether the accident arose out of plaintiff\u2019s course of employment. We hold it did not and reverse.\nThe facts are not disputed. Losinski worked as a part-time receptionist at the offices of Drs. Corcoran, Barkoff and Stag-none. Shortly after arriving at work on July 5, 1979, Losinski ate a doughnut which had been provided by another employee. Doughnuts had been consumed during working hours in the past and the employer did not object to this custom. Occasionally, the employer would furnish the doughnuts. After eating the doughnut, Losinski felt nauseous. For approximately one month prior to the date of the incident in question Losinski had felt nauseous after eating. This was the first time she had felt nauseous at work. Losinski told another employee she felt ill and the employee asked her whether she would like to lie down or go home. Instead, Losinski went to the restroom and placed a pen down her throat to try to induce vomiting. Vomiting was how she had relieved the nauseous feeling in the past. Losinski swallowed the pen and was taken to an emergency room. She was unable to return to work for three weeks and underwent surgery twice.\nThere are two requirements for an injury to be covered under the Workmen\u2019s Compensation Act: it must \u201carise out of\u201d the employment, and be sustained \u201cin the course of\u201d employment. \u00a7\u00a7 52-1-9(B), -28(A), N.M.S.A. 1978; Velkovitz v. Penasco Independent School District, 96 N.M. 577, 633 P.2d 685 (1981); Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579 (1954). Defendants stipulated that the injury was sustained in the course of employment because the accident happened at work during working hours. The defendants contend the injury did not arise out of the employment because placing the pen in her mouth was not a risk connected with Losinski\u2019s employment, nor did the risk flow from the employment as a rational consequence.\nWhere facts are not in dispute, it is a question of law whether an accident arises out of and in the course of employment. Edens v. New Mexico Health & Social Services Dept., 89 N.M. 60, 547 P.2d 65 (1976). Here, there is no dispute as to the facts. The conclusion of law that the accident arose out of the course of employment is freely reviewable. Edens, supra; Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333 (1943).\nTo arise out of employment, the injury must be caused by a risk to which the worker is subjected in the employment. Velkovitz, supra; Gutierrez v. Artesia Public Schools, 92 N.M. 112, 583 P.2d 476 (Ct.App.1978). Under this definition of \u201carising out of,\u201d in order to uphold the trial judge\u2019s ruling, this Court would have to find that putting a pen down one\u2019s throat after becoming nauseous on a doughnut eaten at work is a risk to which one is subjected as a receptionist in a doctor\u2019s office. We hold Losinski\u2019s injury was not caused by a risk incident to her employment. If the compensation claim had been for an injury stemming from the nausea alone, this might be a different case. However, since it was the insertion of the pen into Losinski\u2019s mouth which caused the need for surgery, we hold this to be outside of the definition of \u201ccourse Of employment.\u201d\nLosinski, citing Whitehurst v. Rainbo Baking Company, 70 N.M. 468, 374 P.2d 849 (1962), contends the accident was in the course of her employment because it falls within the personal comfort doctrine. This argument is without merit. Before the personal comfort doctrine may be used the \u201carising out of\u201d requirement must be met. \u201c[W]e conclude that the requirement that the accidental injury \u2018arise out of\u2019 is not eliminated in the application of the [personal comfort] doctrine.\u201d Whitehurst v. Rainbo Baking Company, supra. The New Mexico cases which have discussed the doctrine use it to satisfy the \u201ccourse of employment\u201d requirement, but still require an independent finding that the injury arose out of the employment. Velkovitz, supra; Whitehurst, supra; Thigpen v. County of Valencia, 89 N.M. 299, 551 P.2d 989 (Ct.App.1976). Since the course of employment requirement is admitted by defendants, the personal comfort doctrine has no application in this case.\nSince we hold the accident did not arise out of Losinski\u2019s employment, the award of workmen\u2019s compensation benefits is reversed. We remand to the district court for entry of a judgment consistent with this opinion.\nIT IS SO ORDERED.\nLOPEZ and DONNELLY, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Jerrald J. Roehl, Ronald W. Henkel, Jerrald J. Roehl & Associates, Albuquerque, for defendants-appellants.", "Stephen M. Simone, Farlow and Bradley, P. A., Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "636 P.2d 898\nAnita LOSINSKI, Plaintiff-Appellee, v. DRS. CORCORAN, BARKOFF AND STAGNONE, P. A., Employer, and Dodson Insurance Group, Insurer, Defendants-Appellants.\nNo. 5079.\nCourt of Appeals of New Mexico.\nNov. 3, 1981.\nJerrald J. Roehl, Ronald W. Henkel, Jerrald J. Roehl & Associates, Albuquerque, for defendants-appellants.\nStephen M. Simone, Farlow and Bradley, P. A., Albuquerque, for plaintiff-appellee." }, "file_name": "0079-01", "first_page_order": 109, "last_page_order": 111 }