IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMSC-021
Filing Date: April 30, 2010
Docket No. 31,612
THERESA ORTIZ for the ESTATE
OF ROBERT BAROS, deceased,
Worker-Respondent,
v.
OVERLAND EXPRESS, uninsured employer,
and NEW MEXICO WORKERS’ COMPENSATION
ADMINISTRATION UNINSURED EMPLOYERS’ FUND,
Employer-Insurer-Petitioners.
ORIGINAL PROCEEDING ON CERTIORARI
Gregory D. Griego, Workers’ Compensation Judge
Richard Nelson
Albuquerque, NM
for Petitioner Pro Se
Richard J. Crollett
Sharon L. Gentry
Albuquerque, NM
for Petitioner
Law Offices of Jeffrey C. Brown
Jeffrey C. Brown
Albuquerque, NM
for Respondent
OPINION
MAES, Justice.
1
{1} Robert Baros (Worker) died as a result of an accident that occurred while he was
working as a delivery service driver/courier for Overland Express (Employer). The
Workers’ Compensation Judge (WCJ) denied workers’ compensation benefits, finding that
the sole cause of the accident was Worker’s illegal use of methamphetamine and
amphetamine. The issues presented in this appeal are (1) whether the Legislature intended
to exclude methamphetamine and amphetamine from the prohibited drugs set forth in NMSA
1978, Section 52-1-12 (1989) and NMSA 1978, Section 52-1-12.1 (2001) of the Workers’
Compensation Act (WCA), following the Legislature’s 1972 amendment to the New Mexico
Drug and Cosmetic Act (DCA), NMSA 1953, Section 54-6-27(F)(2) (1967, as amended
through 1971),1 which removed the definition of “depressant, stimulant or hallucinogenic”
drugs; and (2) whether there was substantial evidence to support the WCJ’s determination
that Worker’s death was “occasioned solely by” his use of the illegal drugs
methamphetamine and amphetamine, pursuant to Section 52-1-12. We conclude that the
Legislature did not intend to exclude methamphetamine and amphetamine from the list of
drugs prohibited by Section 52-1-12 and Section 52-1-12.1. We further conclude that there
was insufficient evidence to support the finding of the WCJ that these drugs were the sole
cause of Worker’s death. Accordingly we remand this case to the WCJ for further
proceedings.
I. FACTS AND PROCEDURAL HISTORY
{2} On October 30, 2004, during the course of his employment, Worker was driving
Employer’s van northbound on Interstate 25 when he crossed lanes and made contact with
the rear of another vehicle. As a result, Worker’s van left the roadway, rolling over several
times. Worker was pronounced dead at the scene.
{3} Employer did not have the required workers’ compensation insurance at the time of
Worker’s death. Therefore, Theresa Ortiz (Worker’s estate), the mother of Worker’s two
minor children, filed a claim for benefits with the Uninsured Employers’ Fund (UEF), which
the claims adjuster denied. Worker’s estate then filed a Workers’ Compensation Complaint
with the Workers’ Compensation Administration against Employer and the UEF (hereinafter
collectively referred to as Employer).
{4} At the trial no live testimony was presented. See NMSA 1978, § 52-5-7 (1993)
(governing procedures for filing claims disputes under the WCA). The parties stipulated that
the “live testimony of parties and witnesses at [the] formal trial [was] not necessary, rather
the formal trial [will] consist solely of evidentiary closing arguments.” They also submitted
deposition testimony and stipulated to the admission of their respective exhibits. The
following facts were stipulated to in the Amended Pre-Trial Order:
1
The DCA was later renamed the New Mexico Drug, Device and Cosmetic Act (DDCA),
and recompiled as NMSA 1978, Sections 26-1-1 to -26 (1967, as amended through 2009).
2
c. Prior to Worker’s death, he had dual employment with TLC and
[Employer]. . . .
d. With regard to Worker’s regular job with TLC Paving, he
averaged 40 hours per week, Monday thru Friday. He would normally go
to bed each night between 10:00 p.m. and 11:00 p.m., and arise each
morning between 5:00 a.m. and 5:30 a.m. to get ready for work.
e. [The day before the accident], Worker returned home from work
with TLC around 5:00 p.m., ate dinner, played with his children for about
1/2 hour and then slept around one and one-half hours before arising to go
to and report for work with [Employer].
....
(1) Worker’s representative contends that Worker reported to
work with [Employer] at 10:00 p.m., while Employer contends that
Worker’s shift began at 12 midnight.
The exhibits also indicated that Worker then drove Employer’s delivery van all night until
the accident, which occurred at 7:00 a.m. the next morning.
{5} The police report of the investigation of Worker’s accident was one of the exhibits
admitted into evidence by the stipulation. Included in the report were statements made by
the driver (Witness) of the vehicle struck by Worker. Witness indicated that he was heading
northbound on Interstate 25 and noticed Worker’s van behind him slowly cross over from
the left lane into the right lane. Worker’s van made contact with the rear of Witness’s
vehicle and rolled over several times as it left the roadway.
{6} The investigating officer concluded that “[b]y the tire marks left on the roadway it
appears that [Worker] made no attempt to brake prior to coming into contact with [the other
vehicle].” The time of day, Witness’s description of the van’s movement, and the lack of
braking led the investigating officer to “believe that [Worker] was unaware of the pending
collision,” and that he was “either asleep or unable to avoid making contact with [Witness’s]
vehicle or he was otherwise preoccupied.”
{7} The Autopsy Report from the Office of the Medical Investigator concluded that the
cause of death was multiple blunt force injuries. The toxicology report revealed that
Worker’s femoral blood contained 0.08 mg/l of amphetamine, 0.78 mg/l of
methamphetamine, and 0.03 mg/l of morphine.
{8} Following a trial, the WCJ denied benefits to Worker’s estate “because the sole cause
of Worker’s accident resulting in death was illegal drug use, pursuant to Section 52-1-12
NMSA.” Worker’s estate appealed to the Court of Appeals, arguing that the evidence was
3
insufficient to establish that Worker’s use of illegal drugs was the sole cause of the accident,
in light of evidence of fatigue. Thus, Worker’s estate claimed that it was entitled to recover
workers’ compensation benefits reduced by 10 percent, according to Section 52-1-12.1, since
the drugs were only a contributing cause of the accident.
{9} Section 52-1-12 provides that a worker is precluded from recovering benefits if her
or she is injured while under the influence of “a depressant, stimulant or hallucinogenic drug
as defined in the New Mexico Drug, Device and Cosmetic Act.” Because the definition for
“depressant, stimulant or hallucinogenic” drugs had been removed in 1972 from the DCA,
the Court of Appeals, sua sponte, directed the parties to submit supplemental briefs
addressing whether the use of methamphetamine and amphetamine bars recovery of benefits
pursuant to Section 52-1-12. Ortiz ex rel. Baros v. Overland Express, 2009-NMCA-041, ¶
7, 146 N.M. 170, 207 P.3d 1147. In a divided opinion, the Court held that, based upon the
plain language and amendatory history of Section 52-1-12, the DCA, and its successor the
DDCA, the Legislature did not intend to include the use of methamphetamine and
amphetamine as prohibited drugs under either Section 52-1-12 or Section 52-1-12.1. Ortiz,
2009-NMCA-041, ¶¶ 14-15. The Court therefore held that Sections 52-1-12 and 52-1-12.1
were inapplicable to the present case and Worker’s estate was entitled to recover full
workers’ compensation benefits. Ortiz, 2009-NMCA-041, ¶ 17. The Court did not reach
the issue of whether Worker’s drug use was the sole cause of the accident.
{10} In his dissent, Judge Wechsler concluded that the Legislature plainly intended to
include “depressant, stimulant or hallucinogenic drug[s]” within the list of prohibited drugs
enumerated in Sections 52-1-12 and 52-1-12.1. Ortiz, 2009-NMCA-041, ¶ 30 (Wechsler,
J., dissenting). “However, the Legislature’s removal of the definition of ‘depressant,
stimulant or hallucinogenic drug’ from the predecessor to the DDCA . . . presented an
apparent conflict between the statutory wording and the overall legislative intent.” Id.
(internal quotation marks omitted). In such cases, it is the Judiciary’s “‘responsibility to
search for and effectuate . . . legislative intent.’” Id. ¶ 28 (Wechsler, J., dissenting) (quoting
State ex. rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1358 (1994)).
Therefore, Judge Wechsler concluded that
although the Legislature removed the definition of “depressant, stimulant or
hallucinogenic drug” from the predecessor to the DDCA, the DDCA’s
reference to the Schedules of the Controlled Substances Act, which include
a definition of the stimulants methamphetamine and amphetamine, is
nevertheless sufficient for those drugs to be included in the DDCA and, by
way of that link, in Section 52-1-12.
Id. ¶ 34 (Wechsler, J., dissenting). With respect to the sufficiency of the evidence, Judge
Wechsler believed that substantial evidence supported the WCJ’s determination that
Worker’s use of illegal drugs was the sole cause of the accident. Id. ¶ 27 (Wechsler, J.,
dissenting).
4
{11} We granted Employer’s petition for writ of certiorari pursuant to NMSA 1978,
Section 34-5-14(B)(4) (1972) and Rule 12-502 NMRA, which presents the following
questions for our review: (1) whether the Court of Appeals “erred in holding that the
Legislature did not intend to include the drugs methamphetamine and amphetamine as . . .
prohibited drug[s] in the definitions of a ‘depressant, stimulant or hallucinogenic’ [drug] in
Sections 52-1-12 and 52-1-12.1”; and (2) whether “there is substantial evidence to support
the [WCJ’s] determination that Worker’s . . . death was due solely to his use of the illegal
drugs methamphetamine and amphetamine contrary to Section 52-1-12” of the WCA. Ortiz
v. Overland Express, 2009-NMCERT-004, 146 N.M. 642, 213 P.3d 792. See § 34-5-
14(B)(4) (providing that this Court’s appellate jurisdiction extends to cases involving “an
issue of substantial public interest”); Rule 12-502 (governing petitions for the issuance of
writs of certiorari seeking review of decisions of the Court of Appeals).
II. DISCUSSION
A. Whether the Exclusion of Methamphetamine and Amphetamine Contravenes
the Purpose, Object, and Intent of the Legislature
{12} Under Section 52-1-12, a worker is prohibited from obtaining workers’ compensation
benefits when injured if he is under the influence of certain drugs:
No compensation is payable from any employer under the provisions
of the Workers’ Compensation Act [Chapter 52, Article 1 NMSA 1978] if the
injury to the person claiming compensation was occasioned solely by the
person being under the influence of a depressant, stimulant or hallucinogenic
drug as defined in the New Mexico Drug, Device and Cosmetic Act [Chapter
26, Article 1 NMSA 1978] or under the influence of a narcotic drug as
defined in the Controlled Substances Act [30-31-1 NMSA 1978] . . . .
(Emphasis added.)
{13} Section 52-1-12 refers us to two other statutes to determine whether a drug falls
under its provisions: (1) the DDCA, to determine if the drug is “a depressant, stimulant or
hallucinogenic”; and (2) the Controlled Substances Act, to determine if the drug is a
“narcotic.”
{14} The 1971 amendment to the DDCA defined a depressant, stimulant, or
hallucinogenic as
any drug which contains any quantity of amphetamine or any of its optical
isomers; any salt of amphetamine or any salt of an optical isomer of
amphetamine; or any substance which the federal act has found to be, and by
regulation, designated as habit-forming because of its stimulant effect on the
central nervous system.
5
1971 N.M. Laws, ch. 245, § 2. In 1972, however, this definition for depressant, stimulant,
or hallucinogenic drug was removed. 1972 N.M. Laws, ch. 84, § 43.
{15} Concurrent with the removal of the definition from the DDCA, the Legislature
enacted the New Mexico Controlled Substances Act (CSA), 1972 N.M. Laws, ch. 84, § 1.2
The CSA included the definition of controlled substances as “any drug, substance or
immediate precursor enumerated in Schedules I through V of the Controlled Substances
Act,” and organized the drugs according to their depressant, stimulant, and hallucinogenic
effects within Schedules I, II, and III. Id. §§ 6-8, 43. Notably, Schedule II identified drugs
“associated with a stimulant effect on the central nervous system” and included any
substance containing any quantity of methamphetamine or amphetamine. Id. § 7.
{16} Employer claims on appeal that when the Legislature classified drugs in the CSA,
according to their “depressant, stimulant and hallucinogenic” effects, the Legislature
intended to retain and incorporate by reference the stimulants methamphetamine and
amphetamine in the DDCA. Employer argues that the Court of Appeals’ conclusion to the
contrary conflicts with case law, legislative intent, and the public interest.
{17} The majority of the Court in Ortiz concluded that to read methamphetamine and
amphetamine into Sections 52-1-12 and 52-1-12.1 would require them to engage in
“impermissibly broad construction” and thus limited their analysis to the plain meaning of
the statute. 2009-NMCA-041, ¶ 15. Since the DDCA currently does not define “depressant,
stimulant or hallucinogenic drugs,” the Court of Appeals concluded that it could not
“presume that after 1972, the Legislature intended to include methamphetamine and
amphetamine in the definition of ‘depressant, stimulant, and hallucinogenic drug’ in Section
52-1-12 and Section 52-1-12.1.” Id. ¶ 14. Judge Wechsler dissented from the majority,
opining that the plain meaning of the statute was “muddled” and concluded that in such cases
“‘it is part of the essence of judicial responsibility to search for and effectuate the legislative
intent—the purpose or object—underlying the statute.’” Id. ¶ 28 (Wechsler, J., dissenting)
(quoting Gallegos, 117 N.M. at 353, 871 P.2d at 1359). Judge Wechsler reasoned that “the
reference to the definitional language of the DDCA is ancillary” and that the Court should
look to the definition of stimulant drug in Section 30-31-7(A)(3), which includes
methamphetamine and amphetamine, in order to effectuate the Legislature’s intention that
recovery under the WCA should be barred when the use of such drugs causes an accident.
Ortiz, 2009-NMCA-041, ¶¶ 31, 33 (Wechsler, J., dissenting).
{18} Because Section 51-1-12 refers to a statutory definition that does not exist in the
DDCA, there is “‘an apparent conflict between the statutory wording and the overall
legislative intent.’” Ortiz, 2009-NMCA-041, ¶ 30 (Wechsler, J., dissenting) (quoting
Gallegos, 117 N.M. at 353, 871 P.2d at 1359). When a statute’s language is ambiguous or
2
The CSA was recompiled as NMSA 1978, Sections 30-31-1 to -41 (1972, as amended
through 2009).
6
unclear, we look to legislative intent to inform our interpretation of the statute. See Perea
v. Baca, 94 N.M. 624, 627, 614 P.2d 541, 544 (1980) (“If there is any doubt as to the
meaning of the words, we are permitted to interpret by looking to legislative intent . . . .”);
Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, ¶ 23, ___ N.M. ___, 226 P.3d 622 (No.
31,279, Dec. 2, 2009) (holding that if giving effect to the language of a statute is absurd or
unreasonable, then we interpret it according to its obvious spirit or reason).
As nearly as we can, we must put ourselves in the place of those who uttered
the words, and try to divine how they would have dealt with the unforeseen
situation; and, although their words are by far the most decisive evidence of
what they would have done, they are by no means final.
Gallegos, 117 N.M. at 354, 871 P.2d at 1360 (citation omitted). To the extent that this
question implicates statutory interpretation, we review issues concerning legislative intent
de novo. State v. Fleming, 2006-NMCA-149, ¶ 9, 140 N.M. 797, 149 P.3d 113.
{19} When interpreting statutes, we seek to give effect to legislative intent by looking to
the “language used and consider[ing] the statute’s history and background.” Key v. Chrysler
Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996). In this case, the
statutory history provides us with guidance as to the legislative intent. When the Legislature
deleted the definition of depressant, stimulant, or hallucinogenic drug from the DDCA in
1972, they did not remove the reference to “depressant, stimulant or hallucinogenic drug[s]”
in Section 52-1-12. When Section 52-1-12 was modified in 1989, the reference remained.
In 2001, the Legislature amended the WCA by adding Section 52-1-12.1, entitled
“Reduction in compensation when alcohol or drugs contribute to injury or death.” Section
52-1-12.1 refers to the same statute as Section 52-1-12: “depressant, stimulant or
hallucinogenic drug as defined in the New Mexico Drug, Device and Cosmetic Act [Chapter
26, Article 1 NMSA 1978] or under the influence of a narcotic drug as defined in the
Controlled Substances Act [30-31-1 NMSA 1978].” The Legislature’s continued reference
to depressant, stimulant, or hallucinogenic drugs in these two sections demonstrates their
intent to include these drugs within the class of drugs that limit or bar recovery of workers’
compensation benefits. See State v. Gonzales, 78 N.M. 218, 219, 430 P.2d 376, 377 (1967)
(“We have held that it is proper for this court to consider prior and subsequent statutes in
pari materia to determine legislative intent.”).
{20} In addition, the Legislature’s substitution of “controlled substance,” which refers us
to the CSA, for “depressant, stimulant or hallucinogenic drug” in 1972, demonstrates its
intention that we should look to the CSA to determine which drugs limit or bar recovery of
workers’ compensation benefits. See State v. Maestas, 2007-NMSC-001, ¶ 21, 140 N.M.
836, 149 P.3d 933 (filed 2006) (holding that when the Legislature enacts a statute, it is
presumed that the Legislature is aware of existing statutes); see also Las Cruces v. Rogers,
2009-NMSC-042, ¶ 12, 146 N.M. 790, 215 P.3d 728 (“Statutes concerning the same subject
matter must be read in connection with each other.” (citing State v. Marquez,
2008-NMSC-055, ¶ 7, 145 N.M. 1, 193 P.3d 548)). Within the Schedules of the CSA, drugs
7
are classified according to their effect on the central nervous system. Drugs with depressant,
stimulant, or hallucinogenic effects are listed in Sections 30-31-8(B), 30-31-7(A)(3), and
30-31-6(C), respectively. Section 30-31-7(A)(3), which lists drugs that have a “stimulant
effect on the central nervous system,” identifies both methamphetamine and amphetamine.
By identifying methamphetamine and amphetamine as stimulant drugs in the CSA, we can
infer that the Legislature intended them to be included as “depressant, stimulant or
hallucinogenic drug[s]” prohibited by Section 52-1-12.
{21} Worker’s estate maintains, however, that it is the role of the Legislature, not the
Judiciary, to correct the reference to the non-existent definition of depressant, stimulant, and
hallucinogenic drugs. Yet, as noted above, this Court has consistently recognized that it is
appropriate for the Judiciary to look beyond the plain meaning of the statute’s language to
effectuate legislative intent when the statute is ambiguous. For instance, in Gallegos, the
Court expressed that it is “the high duty and responsibility of the judicial branch of
government to facilitate and promote the legislature’s accomplishment of its
purpose—especially when such action involves correcting an apparent legislative mistake.”
117 N.M. at 353, 871 P.2d at 1360. We agree with Judge Wechsler in Ortiz that “the
Legislature committed oversight when it removed the specific definitions referred to in
Section 52-1-12.” 2009-NMCA-041, ¶ 32 (Wechsler, J., dissenting). Therefore, pursuant
to our duty to effectuate legislative intent, we correct this apparent oversight.
B. Whether There Was Substantial Evidence to Find That Worker’s Use of
Methamphetamine and Amphetamine Was the Sole Cause of Worker’s
Accident
{22} Worker’s use of methamphetamine and amphetamine before the accident either bars
recovery of benefits pursuant to Section 52-1-12 or reduces it by 10 percent pursuant to
Section 52-1-12.1. In order to determine if Worker’s estate’s recovery should be barred or
simply reduced, we address the issue of whether Worker’s use of methamphetamine and
amphetamine was the sole cause of Worker’s death. Worker’s estate contends that there was
not substantial evidence to support the WCJ’s conclusion that Worker’s use of
methamphetamine was the sole cause of the accident, in light of evidence of Worker’s
fatigue. Employer argues that the WCJ reasonably could have found that Worker’s fatigue
was caused by his illegal consumption of drugs, rather than his lack of sleep.
{23} The WCJ’s Compensation Order contained the following Findings of Fact on the
issue of causation:
17. The accident of October 30, 2004, was occasioned solely by Worker’s
use of methamphetamine and amphetamine without prescription of a
physician. . . .
8
18. At the time of accident, Worker was under the influence of amphetamine
and methamphetamine. That drug is a narcotic drug. The use of that drug
was the exclusive proximate cause of the accident of October 30, 2004.
(Emphasis added.) The WCJ also made the following conclusion of law regarding causation:
“7. Claimant for Worker is not entitled to any benefits. This is because the sole cause of
Worker’s accident resulting in death was illegal drug use, pursuant to Section 52-1-12
NMSA.”
{24} “[T]he issue of causation is a factual question to be determined by the fact finder,”
in this case, the WCJ. Wilson v. Yellow Freight Sys., 114 N.M. 407, 410, 839 P.2d 151, 154
(Ct. App. 1992). “We review factual findings of [the WCJ] under a whole record standard
of review.” DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d
341. A whole record standard of review mandates that “this Court reviews both favorable
and unfavorable evidence to determine whether there is evidence that a reasonable mind
could accept as adequate to support the conclusions reached by the fact finder.” Wagner v.
AGW Consultants, 2005-NMSC-016, ¶ 79, 137 N.M. 734, 114 P.3d 1050. This Court has
stated that “[t]he purpose of findings of fact is to set out the ultimate facts of the case, and
they must be read together and the conclusions of law flow therefrom.” Hay v. N.M. State
Highway Dep’t, 66 N.M. 145, 148, 343 P.2d 845, 847 (1959). To determine whether a
challenged finding is supported by substantial evidence, “the reviewing court views the
evidence in the light most favorable to the agency decision, but may not view favorable
evidence with total disregard to contravening evidence.” Grine v. Peabody Natural Res.,
2006-NMSC-031, ¶ 28, 140 N.M. 30, 139 P.3d 190 (internal quotations marks and citation
omitted). To warrant reversal, this Court must be persuaded that it “cannot conscientiously
say that the evidence supporting the decision is substantial, when viewed in the light that the
[whole] record . . . furnishes.” Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 129,
767 P.2d 363, 368 (Ct. App. 1988) (internal quotation marks and citation omitted).
{25} The evidence supporting the decision is not sufficient to establish that Worker’s drug
use was the sole cause of the accident. Based on the levels of drugs in Worker’s blood,
neither of the expert witnesses could state with any certainty that Worker’s drug use was the
sole cause of the accident. Worker’s estate’s expert witness, Dr. Eugenia Brazwell, stated
that neither she nor anyone else could testify with a reasonable degree of toxicologic
probability that the accident was “occasioned solely” by the drugs consumed by Worker at
the time of the accident. Explaining her inability to draw this conclusion, Dr. Brazwell
stated that “it’s difficult to tell just by a level [of drugs in the blood] exactly what state
[Worker] was in.” She further stated that it is possible than an individual “with this amount
of drugs in [his] system could function and not have an accident.” Employer submitted the
report of Dr. Don Fisher, an expert of toxicology and occupational diseases. Dr. Fisher
similarly concluded that, though the blood levels were high enough to be a contributing
cause, it would be “difficult to be absolutely sure . . . whether the accident was ‘occasioned
solely’ by the level of drugs,” even leaving room for doubt.
9
{26} There was substantial evidence presented to establish that fatigue was a contributing
factor of the accident. In the Amended Pre-Trial Order, the parties stipulated that on the day
before the accident Worker worked a full day at his other job with TLC Paving and only
slept for approximately one and one-half hours before going to work for Employer. He then
drove all night, and the accident occurred early the next morning at 7:00 a.m. In his police
report, the investigating officer indicated that, considering the evidence that Worker made
no attempt to brake, the time of morning, and Witness’s description of Worker slowly
drifting into his lane, Worker “was either asleep or unable to avoid making contact” with the
other vehicle.
{27} Worker’s estate’s expert witness concluded that fatigue was likely a contributing
cause of the accident. In her report, Dr. Brazwell concluded that the circumstances of the
accident were consistent with Worker having fallen asleep at the wheel. She also testified
that “[l]ooking at the accident scenario and the fact that [Worker] did not apply braking [it]
seemed like he was probably more in a somnolent state, that he was more sleepy or
lethargic.” She further stated that she would not be comfortable being on the road with an
individual who was sober, but who had as little sleep as Worker.
{28} The WCJ’s findings of fact in support of his determination that Worker’s drug use
was the sole cause of the accident are actually conclusions of law. In his findings of fact,
the WCJ concluded that the accident was “occasioned solely by” Worker’s use of
methamphetamine and that Worker’s drug use was the “exclusive proximate cause” of the
accident. (Emphasis added.) When conclusions of law are listed as facts, we do not afford
them any deference in our review. Chapman v. Varela, 2009-NMSC-041, ¶ 5, 146 N.M.
680, 213 P.3d 1109. There were no other factual findings in the Order to support the WCJ’s
conclusion that Worker’s drug use was the sole cause of the accident. Moreover, the WCJ
failed to address the overwhelming evidence of Worker’s fatigue, specifically Worker’s lack
of sleep and the length of time Worker had been driving before the accident occurred, raised
in Worker’s estate’s Requested Findings of Fact and Conclusions of Law. We also express
concern that the WCJ incorrectly found that methamphetamine was a narcotic drug. The
CSA identifies methamphetamine as a stimulant drug, which unlike narcotic drugs, has the
usual effect of counteracting fatigue. The WCJ’s improper classification of
methamphetamine illustrates that the WCJ may have misunderstood the drug’s effect on
Worker.
{29} Relying on Dr. Brazwell’s testimony that methamphetamine causes fatigue when
taken over a period of days, Employer argues that Worker’s drug use was the cause of his
fatigue. Dr. Brazwell explained that while the initial physical effect of methamphetamine
is as a stimulant that counteracts fatigue and sleepiness, when a large amount of
methamphetamine is taken over a period of days, the result is the opposite, causing extreme
sleepiness. She indicated that if Worker had a history of drug use then that history could be
construed as evidence that he was substance dependent and had been using drugs for a period
of days. Thus, in order to bolster its theory that Worker was an abuser of methamphetamine
who had been on a binge for a period of days when the accident occurred, Employer
10
presented Worker’s criminal record that showed prior use of illegal drugs. However, the
criminal record produced by Employer is of little probative value, since we cannot glean
from the record whether methamphetamine was involved in the crime or whether the
violation was for distribution or possession. In addition, the violation occurred in 1988,
sixteen years before Worker’s accident.
{30} Employer did not present any further evidence indicating that Worker had used
methamphetamine in the days leading up to the accident. Since Employer raised Worker’s
drug use as an affirmative defense, which would bar recovery by Worker’s estate pursuant
to Section 52-1-12, Employer had the burden of proving that Worker’s accident was
“occasioned solely by” his drug use. See Estate of Mitchum v. Triple S Trucking, 113 N.M.
85, 91, 823 P.2d 327, 333 (Ct. App. 1991) (recognizing Section 52-1-12 as an affirmative
defense); see also J. A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 294, 404 P.2d 122,
124 (1965) (stating that it is well settled that the party alleging an affirmative defense has
the burden of proof). Employer failed to meet its evidentiary burden. In the absence of
evidence that Worker was a “binge” or habitual user of methamphetamine, who had been
using methamphetamine in the days leading up to the accident, the record is insufficient to
support a conclusion that Worker’s drug use caused his fatigue. There was therefore
insufficient evidence that Worker’s use of drugs was the sole cause of the accident to the
exclusion of other contributing causes, such as Worker’s fatigue.
III. CONCLUSION
{31} We conclude that the Legislature intended to include methamphetamine and
amphetamine as stimulant drugs under Sections 52-1-12 and 52-1-12.1. Based on our
review of the whole record, we further conclude that there was insufficient evidence to
support the WCJ’s conclusion that these drugs were the sole cause of Worker’s accident, and
thus the workers’ compensation benefits should be reduced by 10 percent pursuant to Section
52-1-12.1. Accordingly, we reverse the Court of Appeals’ holding that Worker’s estate is
entitled to full workers’ compensation benefits under the WCA. This matter is remanded to
the WCJ for further proceedings consistent with this Opinion.
{32} IT IS SO ORDERED.
____________________________________
PETRA JIMENEZ MAES, Justice
WE CONCUR:
____________________________________
CHARLES W. DANIELS, Chief Justice
_________________________________
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PATRICIO M. SERNA, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
Topic Index for Ortiz v. Overland Express, No. 31,612
AE APPEAL AND ERROR
AE-SS Sua Sponte Issue on Appeal
AE-SB Substantial or Sufficient Evidence
WC WORKERS’ COMPENSATION
WC-RG Workers’ Compensation Regulations
WC-WG Workers’ Compensation, General
WC-BG Benefits, General
WC-CC Causal Connection
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