1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2
3 Opinion Number:
4 Filing Date: November 6, 2014
5 NO. 34,128
6 SARA BENAVIDES,
7 Worker-Petitioner,
8 v.
9 EASTERN NEW MEXICO MEDICAL CENTER 10 and ZURICH AMERICAN INSURANCE COMPANY,
11 Employer/Insurer-Respondents.
12 ORIGINAL PROCEEDING ON CERTIORARI 13 Gregory D. Griego Workers’ Compensation Judge
14 Gerald A. Hanrahan 15 Albuquerque, NM
16 for Petitioner
17 Hale & Dixon, P.C. 18 Timothy S. Hale 19 Albuquerque, NM
20 for Respondents 1 OPINION
2 MAES, Justice.
3 {1} When a worker’s injury “results from the negligence of the employer in failing
4 to supply reasonable safety devices in general use for the use or protection of the
5 worker,” the Workers’ Compensation Act (the Act) provides that a worker’s benefits
6 shall be increased by 10%. NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through
7 2013). In this case we determine whether a “wet floor” sign is a safety device and
8 whether a nurse who slips on a recently mopped floor at work is entitled to a 10%
9 increase in benefits when a “wet floor” sign was not posted near the mopped floor.
10 We hold that a “wet floor” sign is a safety device and that the nurse’s injury resulted
11 from the negligence of the employer in failing to supply reasonable safety devices in
12 general use. In addition, we hold that Section 52-5-1 of the Act does not violate the
13 doctrine of separation of powers.
14 I. FACTS AND PROCEDURAL HISTORY
15 {2} Sara L. Benavides (Worker), a registered nurse working for Eastern New
16 Mexico Medical Center (Employer), slipped and fell on a wet floor in the Medical
17 Center and sustained compensable injuries in 2006. Worker seriously injured her right
18 leg, right hip, lower back, and neck. Soon after, Worker began receiving temporary 1 total disability benefits of $585.89 per week, the maximum rate for a 2006 injury.
2 Worker has continued to receive benefits at this rate.
3 {3} In 2011, Employer filed a complaint seeking a determination of permanent
4 partial disability benefits and maximum medical improvement. Worker filed an
5 amended answer and counterclaim requesting, among other things, a 10% increase
6 in benefits due to a failure to supply a safety device pursuant to Section 52-1-10(B).
7 Worker claimed that “wet floor” signs are a safety device and because they were not
8 posted in or around the patient’s room where she fell, she was entitled to the 10%
9 safety device penalty. Employer denied the safety device allegation and demanded
10 strict proof which resulted in a full evidentiary hearing before the Workers’
11 Compensation Judge (WCJ).
12 {4} At the hearing, only three witnesses testified: Worker; William Fladd,
13 Employer’s Director of Environmental Services; and Rose Blount, another registered
14 nurse who worked for Employer. Mr. Fladd testified that it has been his practice to
15 supply each housekeeping cart with two to four “wet floor” signs. He said that it is
16 Employer’s policy and procedure to place a “wet floor” sign near the entrance of the
17 room being mopped before mopping and to remove the “wet floor” sign after the floor
18 has dried. Mr. Fladd stated that the purpose of a “wet floor” sign is “to notify people
2 1 of a potentially dangerous situation.” At trial, Mr. Fladd stated that he had disciplined
2 employees in the past who failed to post “wet floor” signs.
3 {5} Ms. Blount testified that on the same day that Worker suffered her injury, she
4 also slipped but did not fall on a wet floor when she was attending to a patient, and
5 that no “wet floor” signs were posted in or around the room. Ms. Blount warned her
6 patient not to get out of bed after the patient informed her that “housekeeping just
7 mopped the floor.” Ms. Blount stated that she walked up and down the hall looking
8 for a housekeeper, but she could not find one, nor did she see a housekeeping cart or
9 a “wet floor” sign. Ms. Blount then asked the unit secretary to call housekeeping to
10 request a “wet floor” sign while she watched the door to make sure that nobody was
11 injured.
12 {6} Worker testified that as she entered a patient’s room to administer medication,
13 she took about three steps and “just slipped,” landing on her pubic bone and twisting
14 her whole torso. Worker described the pain as feeling as if somebody had sliced the
15 back of her calf with a knife and that her whole foot was throbbing. Worker remained
16 on the floor for at least five minutes until she crawled to the sink to gather paper
17 towels to place over the floor because she “noticed it was very wet” and she “didn’t
18 want anybody else to fall.” As Worker left the room, she noticed that there was not
3 1 a “wet floor” sign outside of the patient’s room and she did not see any other “wet
2 floor” signs in the hall. Worker witnessed Ms. Blount at the nurse’s station requesting
3 that somebody post “wet floor” signs. Soon after, “wet floor” signs were posted.
4 {7} The WCJ entered a compensation order finding that “wet floor” signs were
5 safety devices, and that Employer did supply “wet floor” signs but that they were not
6 deployed as they should have been. Nevertheless, the WCJ concluded in his
7 compensation order that “Employer provided all safety devices which were
8 appropriate, as required by statute, or in general use,” and that increased benefits
9 under Section 52-1-10(B) were inappropriate.
10 {8} Worker timely appealed. The Court of Appeals affirmed, holding that Jaramillo
11 v. Anaconda Co., 1981-NMCA-030, 95 N.M. 728, 625 P.2d 1245, is controlling in
12 this case. Benavides v. Eastern N.M. Med. Ctr., No. 32,450, mem. op. ¶ 4 (N.M. Ct.
13 App. Mar. 25, 2013) (non-precedential). In Jaramillo, the Court of Appeals held that
14 the “failure to provide” language in Section 52-1-10(B) did not apply to a situation
15 where a safety device is provided by an employer but is not properly employed by a
16 fellow employee. Jaramillo, 1981-NMCA-030, ¶ 8. Because this was “precisely what
17 happened here,” the Court of Appeals denied the 10% increase in benefits. Benavides,
18 No. 32,450, mem. op. ¶ 3.
4 1 {9} Worker appealed the following issue to this Court: “Whether an injured worker
2 is entitled to an increase in benefits pursuant to [Section] 52-1-10(B) if an employer
3 fails to provide a safety device at a potentially dangerous or hazardous work site.”
4 We granted certiorari.
5 II. STANDARD OF REVIEW
6 {10} “We review factual findings of Workers’ Compensation Administration judges
7 under a whole record standard of review”. Dewitt v. Rent-A-Center, Inc., 2009-
8 NMSC-032, ¶ 12, 146 N.M. 453, 212 P.3d 341. “Substantial evidence on the record
9 as a whole is evidence demonstrating the reasonableness of an agency’s decision, and
10 we neither reweigh the evidence nor replace the fact finder’s conclusions with our
11 own.” Id. (internal citation omitted). We will uphold the Board’s decision if we “find
12 evidence that is credible in light of the whole record and that is sufficient for a
13 reasonable mind to accept as adequate to support the conclusion reached by the
14 agency.” Herman v. Miners’ Hosp., 1991-NMSC-021, ¶ 6, 111 N.M. 550, 807 P.2d
15 734 (internal quotation marks and citation omitted). “[A]lthough the evidence may
16 support inconsistent findings, we will not disturb the agency’s finding if supported
17 by substantial evidence on the record as a whole.” Id.
5 1 {11} “In reviewing a WCJ’s interpretation of statutory requirements, we apply a de
2 novo standard of review”. Dewitt, 2009-NMSC-032, ¶ 14.
3 “We look first to the plain meaning of the statute’s words, and we 4 construe the provisions of the Act together to produce a harmonious 5 whole.“After we determine the meaning of the statutes, we review the 6 whole record to determine whether the WCJ’s findings and award are 7 supported by substantial evidence.”
8 Id. (citation omitted).
9 III. DISCUSSION
10 {12} Section 52-1-10(B) provides:
11 In case an injury to, or death of, a worker results from the failure of an 12 employer to provide safety devices required by law or, in any industry 13 in which safety devices are not prescribed by statute, if an injury to, or 14 death of, a worker results from the negligence of the employer in failing 15 to supply reasonable safety devices in general use for the use or 16 protection of the worker, then the compensation otherwise payable 17 under the Worker’s Compensation Act shall be increased ten percent.
18 Worker and Employer both argue that the statutory language is unambiguous as to the
19 requirement to provide safety devices. The parties differ, however, as to whether a
20 “wet floor” sign is a safety device and what is required by the language “supply
21 reasonable safety devices.”
22 A. A “wet floor” sign is a safety device
6 1 {13} Worker argues that a “wet floor” sign is a safety device because its purpose is
2 to warn of a potential danger or hazard. Employer answers that signs promote safety,
3 which is different from an actual safety device, such as a machine guard.
4 {14} What is a reasonable safety device is a factual question. Martinez v. Zia Co.,
5 1983-NMCA-063, ¶ 15, 100 N.M. 8, 664 P.2d 1021. A safety device is something
6 which “‘will lessen danger or secure safety,’ as something tangible, concrete, that can
7 be seen, touched or felt—an ‘instrumentality’—as opposed to a rule or course of
8 conduct.” Montoya v. Kennecott Copper Corp., 1956-NMSC-062, ¶¶ 13-14, 61 N.M.
9 268, 299 P.2d 84. “[W]hat is or is not a safety device depends on the purpose
10 involved.” Martinez, 1983-NMCA-063, ¶ 15. “The term ‘safety device’ must be given
11 a broad interpretation so as to include any practical or reasonable method of lessening
12 or preventing a specific danger to which a workman is exposed.” Jaramillo, 1981-
13 NMCA-030, ¶ 23.
14 {15} Examples of tangible safety devices that lessen a specific danger include the
15 following: goggles used to protect workers’ eyes from flying particles, Pino v. Ozark
16 Smelting & Mining Co., 1930-NMSC-057, ¶¶ 5, 14, 35 N.M. 87, 290 P. 409; guard
17 rails on a platform to protect workers from falling, Thwaits v. Kennecott Copper
18 Corp., Chino Mines Div., 1948-NMSC-019, ¶¶ 13, 18, 52 N.M. 107, 192 P.2d 553;
7 1 a gas indicator to give notice of the presence of deadly gases, Apodaca v. Allison &
2 Haney, 1953-NMSC-048, ¶¶ 12, 21, 57 N.M. 315, 258 P.2d 711; cable clamps to
3 prevent a drill cable from falling into a water well and entangling a worker, Flippo
4 v. Martin, 1948-NMSC-060, ¶¶ 2, 3, 7, 52 N.M. 402, 200 P.2d 366; a rear view mirror
5 on a tractor that allowed the operator to see behind him or her, Martinez, 1983-
6 NMCA-063, ¶¶ 12, 16; a manhole cover to protect workers from falling into an open
7 manhole, Jaramillo, 1981-NMCA-030, ¶ 4.
8 {16} “However, not all things which promote safety can be considered as safety
9 devices, and even those things which might be safety devices for one purpose may not
10 be so for another purpose.” Hicks v. Artesia Alfalfa Growers’ Ass’n, 1959-NMSC-
11 076, ¶ 9, 66 N.M. 165, 344 P.2d 475. In Hicks, an employee was injured when
12 unloading sections of a prefabricated steel building from a railroad car. Id. ¶¶ 3-4.
13 The injury occurred because all of the heavy gauge steel wires holding the sections
14 in place were cut at the same time instead of separately for each section. Id. Hicks
15 held that the method of removing the wires during unloading “would not ordinarily
16 be considered as having any relationship to safety devices to be used for unloading.”
17 Id. ¶ 9. Besides courses of conduct, ordinary hand tools, such as a wrench, are not
8 1 safety devices. Rowland v. Reynolds Elec. Eng’g Co., 1951-NMSC-046, ¶¶ 8-9, 55
2 N.M. 287, 232 P.2d 689.
3 {17} From our reading of the statute as a whole and our interpretation of New
4 Mexico case law, we conclude that a safety device is something specific and tangible
5 that prevents a specific danger; courses of conduct, rules, or ordinary hand tools are
6 not safety devices. Accordingly, we find that a “wet floor” sign is “something
7 tangible, concrete, that can be seen, touched or felt,” Montoya, 1956-NMSC-062, ¶
8 14, not a rule or course of conduct like the unloading of a railroad car. See Hicks,
9 1959-NMSC-076, ¶ 3.
10 {18} A “wet floor” sign warns of the specific danger of a slippery floor, just as eye
11 goggles protect a worker from the specific danger of flying particles and a gas
12 indicator warns workers of the specific danger of harmful gasses. See Pino, 1930-
13 NMSC-057, ¶¶ 5, 14; Apodaca, 1953-NMSC-048, ¶¶ 12, 21. Mr. Fladd testified that
14 the purpose of a “wet floor” sign is to “notify people of a potentially dangerous
15 situation.” Ms. Blount recognized the specific danger of a wet floor when she warned
16 her patient not to get out of bed because of the danger of slipping and falling. Worker
17 overcame her injuries to clean up the wet floor with paper towels to reduce the
18 specific risk of a wet floor. We also interpret the term safety device broadly in order
9 1 to protect employees from specific dangers to which they are exposed. Jaramillo,
2 1981-NMCA-030, ¶ 23. Accordingly, we conclude that a “wet floor” sign is a safety
3 device because it is a tangible device that lessens a specific danger and helps to keep
4 workers safe.
5 {19} Section 52-1-10(B) also requires that the safety device be in “general use.”
6 “General use” means “prevalent, usual, extensive though not universal, wide spread.”
7 Martinez, 1983-NMCA-063, ¶ 17 (internal quotation marks and citation omitted).
8 General use “is a matter of fact and not of opinion” and “proof of the fact may be
9 established either by testimony of specific uses, or by evidence of general practice of
10 contractors.” Romero v. H. A. Lott, Inc., 1962-NMSC-037, ¶ 12, 70 N.M. 40, 369
11 P.2d 777 (citations omitted).
12 {20} Mr. Fladd testified that it was Employer’s usual practice and policy to display
13 “wet floor” signs before mopping and to remove them once the floor has dried. Mr.
14 Fladd also stated that he reprimanded his employees for failing to use “wet floor”
15 signs. Based on Mr. Fladd’s testimony of specific and general uses of “wet floor”
16 signs, we hold that “wet floor” signs were in general use and that a “wet floor” sign
17 is a safety device in general use under Section 52-1-10(B).
18 B. Worker is entitled to a 10% increase in benefits because Employer failed 19 to supply a “wet floor” sign
10 1 {21} The safety device statute “was passed to compel employers to supply
2 reasonable safety devices in general use for the protection of the workmen where
3 safety devices are not specified by law. Only by observing it may employers avoid
4 liability under it for compensable injuries to their employees.” Apodaca,
5 1953-NMSC-048, ¶ 11. The penalty statute “is a recognition of and an attempt to
6 correct the disproportion which might exist between the misconduct and the
7 penalty. . . . The result is an incentive to both parties to observe safe practices”. Baca
8 v. Gutierrez, 1967-NMSC-021, ¶ 11, 77 N.M. 428, 423 P.2d 617. We have not found
9 any ordinance or statute that requires “wet floor” signs, nor do the parties cite to any
10 such law; thus the key question is whether Employer negligently failed to “supply”
11 a “wet floor” sign. Cf. Jones v. Int’l Minerals & Chem. Corp., 1949-NMSC-015, ¶¶
12 8,12, 53 N.M. 127, 202 P.2d 1080 (explaining that an improved electrical switch was
13 required by the Mine Safety Act).
14 {22} Worker contends that it “defies logic and reason” to conclude that Employer
15 supplied a “wet floor” sign when it was not posted near or around the wet floor. The
16 fact that Employer had “wet floor” signs on nearby carts, Worker asserts, is not
17 sufficient to prove that Employer supplied “wet floor” signs. Worker also argues that
18 the Court of Appeals’ decision is contrary to NMSA 1978, Section 52-1-8 (1989),
11 1 titled “Defenses to action by employee.” Because part of the “no fault” system of the
2 Act, several common law defenses previously available to employers were abolished,
3 including negligence of “a fellow servant,” Worker contends that housekeeping staff
4 were “fellow servants,” therefore the WCJ erred by attributing negligence to the staff
5 instead of Employer.
6 {23} Employer counters that Section 52-1-10(B) is unambiguous in its requirement
7 that an employer only supply safety devices; the language does not make the
8 employer the “insurer of his employees’ safety.” Employer cites to Jaramillo in
9 support of its argument that reading the statute to obligate employers to monitor all
10 devices at all times, or to “watchdog” careless employees, is to read more into the
11 statute than it contains.
12 {24} The first guide to statutory interpretation is the actual wording of the statute.
13 Dewitt, 2009-NMSC-032, ¶ 29. However, this Court has advised that a literal
14 interpretation of the Act is not always appropriate because “the provisions of the
15 [Act] are imprecise. . . . This serves as a warning that the plain language rule may not
16 be the best approach to interpreting this statute.” Chavez v. Mountain States
17 Constructors, 1996-NMSC-070, ¶ 25, 122 N.M. 579, 929 P.2d 971. When the
18 statutory language is ambiguous “we can consider principles of statutory construction
12 1 that are employed with statutes that are unclear. In doing so, we must attempt to
2 construe a statute according to its obvious spirit or reason.” Dewitt, 2009-NMSC-032,
3 ¶ 29 (internal quotation marks and citation omitted). Additionally, “we strive to read
4 related statutes in harmony so as to give effect to all provisions.” N.M. Indus. Energy
5 Consumers v. PRC, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105.
6 {25} “Supply” is defined as, “[t]o furnish or provide (a person) with something.”
7 XVII The Oxford English Dictionary 256 (2d ed. 1989) (alteration in original). We
8 do not read anything in the definition of “supply” nor glean anything from its
9 common understanding that specifies whether furnishing or providing a person with
10 a safety device means requiring the use of the safety device. Thus, we turn to
11 precedent and other tools of statutory construction.
12 {26} In Usery v. Kennecott Copper Corp., the Tenth Circuit held that “provide” does
13 not mean “require use.” 577 F.2d 1113, 1118-1119 (10th Cir. 1977). According to
14 Usery, this result is mandated by the plain meaning of the word “provide,” which
15 must be used in interpreting the Occupational Safety and Health Act, which does not
16 require the prevention of “all accidents, but to provide American employees with safe
17 and healthful working conditions ‘so far as possible.’” Id. at 1118. We find the Usery
18 interpretation too formalistic and in contradiction of the requirement that the plain
13 1 language rule does not end our inquiry. See also NMSA 1978, § 50-9-21(A) (1993)
2 (“Nothing in the Occupational Health and Safety Act shall be construed or held to
3 supersede or in any manner affect the Workers’ Compensation Act.”).
4 {27} Instead, we must also construe the statute “according to its obvious spirit or
5 reason.” Dewitt, 2009-NMSC-032, ¶ 29. (internal quotation marks and citation
6 omitted). “The legislature enacted [this section] as a penalty system, placing the duty
7 on the employer to furnish adequate safety devices in general use . . . , and in the
8 event of his failure to do so, making him liable to be found guilty of negligence and
9 subject to the penalty provided.” Baca, 1967-NMSC-021, ¶ 13.
10 The legislative history of the [Occupational Safety and Health] Act is 11 clear that “final responsibility for compliance with the requirements of 12 this Act remains with the employer.” It is difficult to conceive of any 13 rationale that, in the face of employee head, eye, hand, and other 14 injuries, permits an employer to escape responsibility and compliance 15 duties under the [Occupational Safety and Health] Act by simply 16 pointing to shelves filled with unused hardhats, goggles, gloves, and 17 other protective equipment.
18 Mark A. Rothstein, Occupational Safety and Health Law, § 5:7 (2013 ed.).
19 {28} In this case, the Court of Appeals held that Jaramillo is controlling. In
20 Jaramillo a mine worker fell through a manhole when an insecure cover shifted as he
21 stepped on it. 1981-NMCA-030, ¶ 2.The safety device in question in Jaramillo was
22 a manhole cover, provided by the employer at the work site but “left uncovered by the
14 1 negligence of fellow employees.” Id. ¶¶ 4-5. We hold that Jaramillo is not controlling
2 in this case because a “wet floor” sign was not near the site of the accident. Moreover,
3 the negligence of the fellow employee in this case was the complete failure to deploy
4 a “wet floor” sign after mopping, not merely deploying the sign incorrectly.
5 {29} This case is more analogous to Martinez, 1983-NMCA-063, and State, ex rel.
6 Weich Roofing, Inc. v. Industrial Comm’n of Ohio, 590 N.E.2d 781 (Ohio Ct. App.
7 1990). In Martinez, an equipment operator was injured while operating a Bobcat
8 tractor that was not equipped with a rear view mirror. 1983-NMCA-063, ¶¶ 11-12.
9 The employer had other Bobcats equipped with rear view mirrors. Id. ¶ 12. The Court
10 of Appeals found that a rear view mirror was a safety device, that the employer failed
11 to provide a rear view mirror, and affirmed the district court’s award of an increase
12 of benefits pursuant to Section 52-1-10(B). Martinez, 1983-NMCA-063, ¶¶ 16, 20,
13 26. The facts are similar here. Employer provided “wet floor” signs but one was not
14 used at the accident site.
15 {30} In Weich Roofing, a roofing employee ascended to the roof using a ladder
16 equipped with safety feet in accordance with an applicable safety regulation. 590
17 N.E.2d at 782-83. While the employee was on the roof, a co-worker removed the
18 ladder and substituted a wooden ladder without safety feet in its place. Id. at 783. The
15 1 wooden ladder was the upper portion of an extension ladder. Id. The lower portion
2 of the extension ladder had safety feet, but the upper portion did not. Id. When the
3 employee descended from the roof, the wooden ladder slid out from under him
4 causing injury. Id. The employer in Weich Roofing had specifically instructed
5 employees to place safety shoes on the upper portion of an extension ladder when it
6 was used separately and had made feet available on the crew’s equipment truck. Id.
7 {31} On appeal, the employer argued that safety feet were made available in the
8 equipment truck and were therefore provided. Id. The employer also argued that the
9 “co-employee’s negligent removal of and failure to use available safety equipment
10 in violation of company policy” relieved it of liability. Id. The Ohio court rejected
11 employer’s arguments, stating:
12 Relator thus contends that the specific safety regulations require an 13 employer to make required safety equipment available, not to ensure its 14 proper use by employees. Nevertheless, this is not the law of Ohio. 15 Specific safety requirements are enacted to protect the lives, health, or 16 safety of employees. The employer, not the employee, has the obligation 17 to comply with specific safety requirements. Although an employee or 18 third-party may be assigned by the employer to ensure compliance with 19 a specific safety requirement, the ultimate responsibility for failure to 20 comply with such a requirement remains with the employer . . . . As this 21 court recently observed, specific safety regulations are intended to 22 protect employees from their own negligence, folly, or stupidity, in 23 addition to providing them with a safe working environment.
24 Id.(internal quotation marks and citations omitted).
16 1 {32} Weich Roofing is slightly different from this case because safety feet for
2 ladders were specifically required by the Ohio Administrative Code. There is no such
3 requirement for “wet floor” signs in New Mexico. Nonetheless, we find the rationale
4 compelling and in line with the purpose and spirit of the Act that employers must
5 create a safe work environment for their employees.
6 {33} Having determined that a “wet floor” sign is an essential safety device at a
7 work site where nurses are expected to promptly attend to the needs of numerous
8 patients to provide critical care, we conclude that safety devices cannot effectuate
9 their purposes if they are kept in utility closets or in storage. They must be “supplied”
10 and “used” to prevent accidents. The mere fact that Employer had written policies and
11 procedures in place and that “wet floor” signs were provided to custodians does not
12 satisfy the spirit and purpose of the Act. Section 52-1-10(B) places the final
13 responsibility and duty on the employer to furnish adequate safety devices for its
14 workers. See Baca, 1967-NMSC-021, ¶ 13.
15 {34} Worker was not warned of a dangerous situation when she entered the patient’s
16 room because there was not a “wet floor” sign posted near the room nor did she see
17 any posted down the hallway. Further, the testimony from Mr. Fladd and Ms. Blount
18 establish that this was not the only time that “wet floor” signs were not placed near
17 1 a wet floor. Mr. Fladd testified that he had disciplined numerous of his employees for
2 failing to post “wet floor” signs before Worker’s accident. Ms. Blount testified that
3 she also nearly fell on a slippery floor the same day as Worker and that no “wet floor”
4 signs were posted. Worker and Ms. Blount had to take safety precautions into their
5 own hands when Worker dried the wet floor with paper towels and Ms. Blount
6 requested that “wet floor” signs be posted and stood watch to ensure that nobody else
7 was injured on the slippery floor.
8 {35} We also agree with Worker’s contention that Section 52-1-8 prohibits shifting
9 the blame for providing safety devices to the custodial staff. Section 52-1-8(B) states
10 that it shall not be a defense “that the injury or death was caused, in whole or in part,
11 by the want of ordinary care of a fellow servant.” This language affirms that Section
12 52-1-10(B) imposes a responsibility on the employer to create a safe work
13 environment by ensuring that safety devices are supplied and properly employed.
14 {36} The rights of workers and the rights of employers must be subject to the same
15 standards. See Section 52-5-1; Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-
16 034, ¶1, 131 N.M. 272, 34 P.3d 1148. Section 52-1-10(A) provides that a worker’s
17 benefits shall be decreased by ten percent if an injury results from the worker’s
18 “failure to use a safety device provided by [the] employer.” When Subsection (A) and
18 1 (B) are read together, if a worker’s failure to “use” a safety device results in a 10%
2 decrease in benefits, then an employer’s failure to “supply” a safety device should
3 likewise result in a 10% increase in benefits.
4 {37} We hold that Employer failed to supply a safety device and that Worker is
5 entitled to a 10% increase under Section 52-1-10(B). We are not unmindful that under
6 the Act an employer is not to be held strictly liable for all violations. We do not hold
7 here that Employer must provide constant over-the-shoulder supervision for each of
8 its employees, but we do hold that in order to fulfill its statutory obligation, Employer
9 must do more than issue written policies and procedures to its employees or conduct
10 “department training” shortly after hiring them.
11 C. Section 52-5-1 does not violate the doctrine of separation of powers
12 {38} Worker asserts that interpretation of the laws is a power vested solely in the
13 judiciary and that Section 52-5-1 is contrary to established case law that the Act
14 should be interpreted under the rule of liberal construction. See Mascarenas v.
15 Kennedy, 1964-NMSC-179, ¶ 4, 74 N.M. 665, 397 P.2d 312 (“We are firmly
16 committed to the doctrine that the Workmen’s Compensation Act is remedial
17 legislation and must be liberally construed to effect its purpose.”); Avila v.
18 Pleasuretime Soda, Inc., 1977-NMCA-079, ¶ 10, 90 N.M. 707, 568 P.2d 233 (“It
19 1 requires no citation of authority that the Workmen’s Compensation Act must be
2 liberally construed to accomplish beneficent purposes for which it was enacted, and
3 that all reasonable doubts must be resolved in favor of employees.”). Section 52-5-1,
4 titled “Purpose,” reads in relevant part:
5 It is the specific intent of the legislature that benefit claims cases be 6 decided on their merits and that the common law rule of “liberal 7 construction” based on the supposed “remedial” basis of workers’ 8 benefits legislation shall not apply in these cases. . . . Accordingly, the 9 legislature declares that the Workers’ Compensation Act . . . [is] not 10 remedial in any sense and [is] not to be given a broad liberal 11 construction in favor of the claimant or employee on the one hand, nor 12 are the rights and interests of the employer to be favored over those of 13 the employee on the other hand.
14 {39} Employer answers that this issue was not preserved because it was raised for
15 the first time in this appeal. In the alternative, Employer’s only argument is that when
16 the statutory language is clear and unambiguous, it must be given effect.
17 {40} “To preserve a question for review it must appear that a ruling or decision”
18 below was fairly invoked. Rule 12-216(A) NMRA. In Montez v. J & B Radiator, Inc.,
19 the Court of Appeals held that claimant’s failure to raise a constitutional attack on the
20 statute before the Workers’ Compensation Division did not preclude appellate review,
21 inasmuch as the Division had no authority to decide the issue. 1989-NMCA-060, ¶
22 7, 108 N.M. 752, 779 P.2d 129. Montez further stated that “[r]aising such an issue
20 1 before the hearing officer was not required in order to preserve it because he had no
2 authority to decide the issue.” Id.
3 {41} The situation is similar here. Worker did not raise her constitutional argument
4 in front of the WCJ. However, in her docketing statement to the Court of Appeals
5 Worker did raise the question of “[w]hether the WCJ erred in his interpretation of §
6 52-1-10(B).” The Court of Appeals issued its Memorandum Opinion dismissing her
7 appeal before any briefs were submitted. We hold that Worker’s issue was preserved.
8 {42} Worker’s argument was previously advanced in Garcia v. Mt. Taylor Millwork,
9 Inc., 1989-NMCA-100, 111 N.M. 17, 801 P.2d 87. The Court of Appeals concluded
10 that Section 52-5-1 was not an attempt to undermine the jurisprudence developed by
11 the appellate courts. Garcia, 1989-NMCA-100, ¶ 9. Instead, the Court found Section
12 52-5-1 to be “a prospectively applicable statement of legislative intent that neither
13 attempts nor purports to retroactively dismantle established workers’ compensation
14 case law enunciated under the rule of liberal construction.” Garcia, 1989-NMCA-
15 100, ¶ 9.
16 {43} “We have repeatedly held that every presumption is to be indulged in favor of
17 the validity and regularity of legislative enactments. A statute will not be declared
18 unconstitutional unless the court is satisfied beyond all reasonable doubt that the
21 1 legislature went outside the constitution in enacting the challenged legislation.”
2 McGeehan v. Bunch, 1975-NMSC-055, ¶ 7, 88 N.M. 308, 540 P.2d 238 (internal
3 quotation marks and citations omitted). Where “a statute is susceptible to two
4 constructions, one supporting it and the other rendering it void, a court should adopt
5 the construction which will uphold its constitutionality.” Huey v. Lente, 1973-NMSC-
6 098, ¶ 6, 85 N.M. 597, 514 P.2d 1093. “The constitutional doctrine of separation of
7 powers allows some overlap in the exercise of governmental function[s].” Mowrer
8 v. Rusk, 1980-NMSC-113, ¶ 25, 95 N.M. 48, 618 P.2d 886.
9 {44} By virtue of Worker’s argument that Section 52-5-1 violates the doctrine of
10 separation of powers and the holding in Garcia that it is only a statement of
11 legislative intent, it is evident that Section 52-5-1 is susceptible to two constructions.
12 We are not convinced “beyond all reasonable doubt” that the legislature overstepped
13 its bounds in enacting Section 52-5-1. We agree with the Court of Appeals in Garcia
14 that the legislature did not intend the courts to disregard precedent by applying liberal
15 construction. Garcia, 1989-NMCA-100, ¶9. We also agree with the Court of Appeals
16 that liberal construction can still be applied by this Court as it is but one of many
17 tools employed in construing legislation. Id. ¶ 11. We hold that Section 52-5-1 does
18 not violate the doctrine of separation of powers.
22 1 IV. CONCLUSION
2 {45} Section 52-1-10(B) imposes a duty on employers to ensure that they maintain
3 a safe work environment by providing necessary safety devices. Employer cannot be
4 said to have supplied “wet floor” signs just because they were made available to
5 custodians. Employer must ensure that such safety devices are properly employed to
6 avoid accidents such as Worker’s. Therefore, Worker is entitled to a 10% increase in
7 benefits. We also hold that Section 52-5-1 is constitutional.
8 {46} IT IS SO ORDERED.
9 __________________________________ 10 PETRA JIMENEZ MAES, Justice
11 WE CONCUR:
12 ________________________________ 13 BARBARA J. VIGIL, Chief Justice
14 _________________________________ 15 RICHARD C. BOSSON, Justice
16 ___________________________________ 17 EDWARD L. CHÁVEZ, Justice
23 1 _________________________________ 2 CHARLES W. DANIELS, Justice