1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: December 11, 2014
4 NO. 33,288
5 IRENE BEGAY,
6 Worker-Appellant,
7 v.
8 CONSUMER DIRECT PERSONAL CARE,
9 and AMERICAN CASUALTY CO.,
10 Employer/Insurer-Appellee.
11 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
12 Reginald C. Woodward, Workers’ Compensation Judge
13 Titus & Murphy Law Firm
14 Victor A. Titus
15 Farmington, NM
16 for Appellant
17 Camp & Elmore, LLC
18 Christopher T. Elmore
19 Albuquerque, NM
20 for Appellees
1 OPINION
2 ZAMORA, Judge
3 {1} Irene Begay (Worker) filed for workers’ compensation benefits alleging that
4 she was injured while working for Consumer Direct Personal Care (Employer). The
5 workers’ compensation judge (WCJ) found that Worker’s injury was not sustained
6 during the course and scope of her employment, and did not arise out of her
7 employment, and denied her claim. We affirm.
8 BACKGROUND
9 {2} Worker was employed as a personal care attendant for her son, a mentally
10 disabled adult. In 2011, when Worker was injured, she was an employee under the
11 Personal Care Option (PCO) as provided by 8.315.4 NMAC (7/1/2004, as amended
12 through 12/30/2010) (repealed, 2/28/2014).1 This option, generally paid for through
13 Medicaid, allowed relatives already providing services to Medicaid consumers to
14 receive compensation for some of their work, while also allowing consumers to have
15 someone familiar with them to address their needs. 8.315.4.10 NMAC (12/30/2010).
16 {3} Worker was injured on Monday, April 4, 2011. That day she left the house with
17 her family and son around 1:00 p.m. to run errands in Gallup, New Mexico, which is
18 approximately a one-hour drive from her home in Standing Rock, New Mexico. In
19 1
Many of the provisions of the Personal Care Option (PCO) have been replaced
20 by Personal Care Services (PCS) which are found in 8.308.12 (NMAC) (1/01/2014).
1 Gallup, Worker purchased art supplies for her son, took him to lunch, and then
2 dropped him off at a movie. While her son was at the movie, Worker went to a
3 laundromat to wash several of her son’s blankets in a commercial sized washing
4 machine. Worker also did some laundry for her mother-in-law. After finishing the
5 laundry, Worker picked her son up from the movies. While driving home at
6 approximately 7:00 p.m., Worker was abruptly attacked by her son, resulting in an
7 injury to her arm.
8 {4} Worker filed for workers’ compensation benefits. After a trial on the merits of
9 Worker’s claim, the WCJ found that on the day of her injury, Worker’s timesheet
10 verified that she had worked her scheduled hours, from 7:00 a.m. to 2:30 p.m.;
11 Worker knew her errands would take more time than her work schedule permitted;
12 and, pursuant to 8.315.4.9(C) NMAC (12/30/2010), Worker was free to perform
13 services for her son, including laundry, after her scheduled work hours, acting as a
14 mother or a “natural support” rather than an employee.
15 {5} The WCJ concluded that while doing laundry may have been a service Worker
16 performed as an employee, on the day of her injury, Worker did not perform this task
17 within her scheduled employment hours. The WCJ further concluded that Worker’s
18 afternoon activities—taking her son to the movies, going to lunch, doing laundry for
19 her son and her mother-in-law—were not “specific” to her son or to “benefit” her
2
1 Employer, but instead were part of a “family” outing that was not part of her
2 employment. The WCJ decided that Worker’s injury was not sustained in the course
3 or scope of her employment, and did not arise out of her employment. Worker’s
4 complaint was dismissed and this appeal followed.
5 DISCUSSION
6 Standard of Review
7 {6} We review factual findings of WCJs under a whole record standard of review.
8 Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175 P.3d 926.
9 We give deference to the fact finder where findings are supported by substantial
10 evidence. Dewitt v. Rent-A-Ctr., Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d
11 341. “Substantial evidence on the record as a whole is evidence demonstrating the
12 reasonableness of an agency’s decision[.]” Id. We will not “reweigh the evidence [or]
13 replace the fact finder’s conclusions with our own.” Id.
14 {7} To the extent that this analysis involves interpretation of 8.315.4 NMAC
15 (12/30/2010), our review is de novo. See Quynh Truong v. Allstate Ins. Co., 2010-
16 NMSC-009, ¶ 24, 147 N.M. 583, 227 P.3d 73 (“[I]nterpretation of an administrative
17 regulation is a question of law that we review de novo.” (internal quotation marks and
18 citation omitted)).
3
1 Worker’s Employment Under the Human Services Department Regulations
2 {8} At the time Worker was injured, her employment was defined and regulated by
3 the Human Services Department’s (HSD) administrative regulations. See 8.315.4.1
4 NMAC (12/30/2010). Pursuant to these regulations, Medicaid consumers who
5 required assistance with activities of daily living would qualify to receive PCO
6 services. 8.315.4.9 NMAC (12/30/2010). Managed Care Organizations (MCOs)
7 worked with PCO service providers, such as Employer, to coordinate services for
8 eligible Medicaid consumers. Id. MCOs assessed consumers’ individual needs to
9 determine the amount and type of PCO services that would be approved for payment
10 through Medicaid. Id.
11 {9} PCO services were meant to supplement services that consumers already
12 received from “natural supports.” 8.315.4.15 NMAC (12/30/2010). In other words,
13 Medicaid would pay for services that a consumer needed and was not already
14 receiving from friends, family, and other members of the consumer’s community on
15 a consistent basis. Id. PCO consumers could hire a personal care attendant who is a
16 member of their household, however, Medicaid did not cover twenty-four hour a day
17 care or services that the personal care attendant routinely provided as part of the
18 household division of chores, unless those services were specific to the consumer. Id.
4
1 {10} Based on the MCO’s assessment of the consumer’s needs and the natural
2 supports in place, the PCO service provider and the consumer developed an
3 Individual Plan of Care (IPoC). 8.315.4.20 NMAC (12/30/2010). The consumer’s
4 IPoC outlined the services approved for payment through Medicaid as well as the
5 personal care attendant’s work schedule. Id. Unless otherwise specified, approved
6 PCO services should have been provided in the consumer’s residence, and were to be
7 provided during the hours specified in the IPoC. 8.315.4.15(A) NMAC (12/30/2010).
8 {11} The IPoC developed for Worker’s son authorized forty-five hours of services
9 per week. The plan provided for daily assistance with meal preparation, eating,
10 cognitive tasks, hygiene, grooming, bathing, and mobility. Three days a week,
11 Worker’s son could receive one hour of “household services” which included house
12 cleaning, washing dishes and laundry, as well as one hour of “support services,”
13 which included assistance with shopping, errands, and transportation. Worker’s
14 scheduled hours were: Mondays, Tuesdays, and Wednesdays from 7:00 a.m. to 2:30
15 p.m.; Thursdays from 7:00 a.m. to 1:00 p.m.; and Saturdays and Sundays from 7:00
16 a.m. to 12:30 p.m. Because Worker cared for her son continuously, the IPoC’s
17 specified tasks and schedule are what distinguished the services that she provided on
18 the clock as an employee and those she provided off the clock as a mother and natural
19 caregiver.
5
1 The Workers’ Compensation Act
2 {12} Under the Workers’ Compensation Act (WCA), an injured worker is entitled
3 to workers’ compensation benefits if “at the time of the accident, the employee is
4 performing service arising out of and in the course of his employment[.]” NMSA
5 1978, § 52-1-9(B) (1973). “Arising out of and in the course of employment are two
6 distinct requirements.” Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2014-
7 NMCA-019, ¶ 8, 317 P.3d 866 (internal quotation marks and citation omitted).
8 However, in order for a claimant to be entitled to compensation, both of the
9 requirements for “arising out of” and “in the course of . . . employment” must be met.
10 Garcia v. Homestake Mining Co., 1992-NMCA-018, ¶ 6, 113 N.M. 508, 828 P.2d
11 420 (internal quotation marks and citation omitted).
12 {13} In determining whether an injury arose out of the worker’s employment, we
13 look at the cause of the accident. Id. ¶ 7; see Velkovitz v. Penasco Indep. Sch. Dist.,
14 1981-NMSC-075, ¶ 2, 96 N.M. 577, 633 P.2d 685 (“For an injury to arise out of
15 employment, the injury must have been caused by a risk to which the injured person
16 was subjected in his employment.”); Flores v. McKay Oil Corp., 2008-NMCA-123,
17 ¶ 10, 144 N.M. 782, 192 P.3d 777 (“The term ‘arising out of’ the employment denotes
18 a risk reasonably incident to claimant’s work.” (citation omitted)). Injuries “arising
19 out of” employment typically include those occurring during acts the worker was
6
1 specifically instructed to perform by the employer and acts incidental to the worker’s
2 assigned duties. Schultz, 2014-NMCA-019, ¶ 8 (internal quotation marks and citation
3 omitted).
4 {14} The second requirement under the WCA is that the injury occurs “in the course
5 of employment, relates to the time, place, and circumstances under which the accident
6 takes place.” Velkovitz, 1981-NMSC-075, ¶ 2. We consider whether the injury “takes
7 place within the period of employment, at a place where the employee may
8 reasonably be, and while the employee is reasonably fulfilling the duties of
9 employment or doing something incidental to it.” Chavez v. ABF Freight Sys., Inc.,
10 2001-NMCA-039, ¶ 11, 130 N.M. 524, 27 P.3d 1011 (internal quotation marks and
11 citation omitted). “If the worker was not reasonably involved in fulfilling the duties
12 of his employment at the time of his injury, he was not acting within the course of his
13 employment.” Flores, 2008-NMCA-123, ¶ 10.
14 {15} Due to the unique nature of Worker’s employment, including the fact that her
15 employment duties overlapped significantly with the services she provided as a
16 mother or natural support, most of the factors traditionally considered in the “arising
17 out of employment” and “in the course of employment” analyses do not inform our
18 analysis here. When Worker was providing services to her son, the tasks she
19 performed, the places she may have reasonably been, and the risks incidental to her
7
1 caregiving were much the same whether she was providing services as an employee
2 or as a natural support. On the day she was injured, Worker provided services to her
3 son that could have been provided in either of her two roles. As a result, Worker’s
4 schedule, as set forth in the IPoC, becomes the determinative factor as to whether the
5 “arising out of employment” and “in the course of employment” requirements were
6 met.
7 {16} On the day of the accident, Worker was scheduled to work from 7:00 a.m. to
8 2:30 p.m. However, Worker stated that she was not bound by this schedule.
9 According to Worker, she had difficulty accomplishing all of her employment tasks
10 within her scheduled hours because her son woke up relatively late. She testified that
11 when she reported this to her program coordinator, she was instructed to submit her
12 timesheets, reflecting the hours approved in the IPoC, even if she actually performed
13 her tasks outside of her scheduled hours. Worker contends that she believed she
14 would be paid for seven-and-a-half hours a day, no matter when the actual work was
15 done.
16 {17} The WCJ considered and rejected this claim and concluded that Worker’s
17 injury did not “arise from” or occur “in the course of employment.” “Because
18 weighing evidence and making credibility determinations are uniquely within the
19 province of the trier of fact, we will not reweigh the evidence nor substitute our
8
1 judgment for that of the WCJ, unless substantial evidence does not support the
2 findings.” Dewitt, 2009-NMSC-032, ¶ 22.
3 {18} Here, Worker’s testimony about working outside her scheduled hours was
4 directly contradicted by her program coordinator, who testified that Worker never
5 informed her about problems with the schedule but that Worker had been advised to
6 follow her schedule as set forth in the IPoC. Worker also received documentation,
7 including an Employee Handbook, which provided that she was to work only the
8 hours approved in the IPoC and to track her actual hours worked. Moreover, we note
9 if Worker was working outside her scheduled hours, she would have been in direct
10 violation of 8.315.4.15(A) NMAC (12/30/2010) that requires that PCO services be
11 within the hours specified in the IPoC. We conclude that the evidence is sufficient to
12 support the WCJ’s conclusion that Worker’s injury did not “arise from” or occur “in
13 the course of employment.”
14 The Traveling Employee and Special Errand Exceptions Do Not Apply
15 {19} Worker argues that because she began her trip to Gallup intending to perform
16 work-related duties and while still on the clock, she was a traveling employee on a
17 special errand for Employer. Worker’s reliance on the traveling employee and special
18 errand doctrines is misplaced.
9
1 {20} Under the WCA, workers injured while traveling between home and work are
2 generally not entitled to compensation. See NMSA 1978, § 52-1-19 (1987) (excluding
3 from compensation “injuries to any worker occurring while on his way to assume the
4 duties of his employment or after leaving such duties[ ]”). “In this respect, the [WCA]
5 codifies what is commonly known in workers’ compensation law as the ‘going-and-
6 coming rule.’” Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128
7 N.M. 601, 995 P.2d 1043. “This rule arises from the recognition that, while
8 admittedly the employment is the cause of the workman’s journey between his home
9 and [his job], it is generally taken for granted that workmen’s compensation was not
10 intended to protect him against all the perils of that journey.” Id. (internal quotation
11 marks and citation omitted).
12 {21} We have acknowledged exceptions to the going-and-coming rule where
13 workers’ employment requires travel beyond a typical commute. See Avila v.
14 Pleasuretime Soda, Inc., 1977-NMCA-079, ¶ 16, 90 N.M. 707, 568 P.2d 233 (“The
15 ‘special errand’ rule is an exception to the ‘going[-]and[-]coming’ rule.”); see also
16 Ramirez, 2000-NMCA-011, ¶ 11 (acknowledging that “[t]raveling employees . . . for
17 whom travel is an integral part of their jobs, such as those who travel to different
18 locations to perform their duties,” are not subject to the “going-and-coming rule”
19 (internal quotation marks and citation omitted)).
10
1 {22} The traveling employee exception is inapplicable under the facts of this case.
2 A traveling employee is defined as “[a]n employee who is taken away from home by
3 his or her employment and who of necessity must eat and sleep away from home in
4 order to further the employer’s business [and who] may be considered to be in the
5 continuous employment of the employer, day and night.” Id. ¶ 11 (internal quotation
6 marks and citation omitted). However, “[a] traveling employee is not simply one who
7 must travel significant distances to and from his job[.]” Id. For traveling employees,
8 “travel is an integral part of their jobs,” such that they “travel to different locations
9 to perform their duties,” differentiating them from “employees who commute daily
10 from home to a single workplace.” Id. (internal quotation marks and citation omitted).
11 Here, the IPoC provides that Worker may assist with transportation, however, Worker
12 is not required to be away for days at a time as part of her employment. In fact, such
13 work related travel would contradict both the IPoC, which allows for occasional,
14 incidental travel, and 8.315.4.15(A) NMAC (12/30/2010), which provides that unless
15 otherwise specified, PCO services should be provided in the consumer’s residence.
16 Moreover, even where the traveling employee exception does apply, the employee
17 “must still demonstrate that the injury arose out of and in the course of employment.”
18 Ramirez, 2000-NMCA-011, ¶ 14 (internal quotation marks and citation omitted).
19 Worker has failed to make that showing in this case.
11
1 {23} The special errand exception is inapplicable here. The special errand exception
2 applies only where “the travel was required at the direction of the employer.” Avila,
3 1977-NMCA-079, ¶ 16. In Avila, the employer required employee to make a bank
4 deposit after business hours every day. Id. ¶¶ 2, 12-13. This Court held that the
5 employee “was at work at the place where her employer’s business required her to be.
6 It was incident to the business.” Id. ¶ 24. From the time the employee deviated from
7 her normal route home to go to the bank until she returned to that route “beginning
8 her trip home, [she] was acting in the scope and in the course of her employer’s
9 business.” Id. In the present case, the IPoC outlining Worker’s employment duties did
10 not require Worker to travel in order to perform laundry services. Worker provided
11 no evidence that her trip to Gallup was required by Employer or that it was incident
12 to Employer’s business as opposed to being incident to her natural care-taking role.
13 {24} Finally, Worker argues that the HSD regulations requiring adherence to the
14 IPoC are not binding in this case because Employer required her to go on special
15 errands to complete laundry services, but failed to include this required errand in the
16 IPoC. Because we find that Worker was not on a special errand when she was injured,
17 this argument is moot and we need not address it here.
18 CONCLUSION
19 {25} For the foregoing reasons we affirm.
12
1 {26} IT IS SO ORDERED.
2 ______________________________
3 M. MONICA ZAMORA, Judge
4 WE CONCUR:
5 _____________________________
6 JAMES J. WECHSLER, Judge
7 _____________________________
8 J. MILES HANISEE, Judge
13