Pearson v. Johnson Controls, Northern N.M., LLC

2011 NMCA 034, 149 N.M. 740
CourtNew Mexico Court of Appeals
DecidedFebruary 9, 2011
DocketNo. 29,622
StatusPublished
Cited by5 cases

This text of 2011 NMCA 034 (Pearson v. Johnson Controls, Northern N.M., LLC) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pearson v. Johnson Controls, Northern N.M., LLC, 2011 NMCA 034, 149 N.M. 740 (N.M. Ct. App. 2011).

Opinion

OPINION

KENNEDY, Judge.

{1} In this case, we hold that the standard of wilfulness required to deny workers’ compensation benefits to an employee for self injury is the same as applied to employers under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d 1148. Marc Pearson (Worker) appeals a workers’ compensation order in which the workers’ compensation judge (WCJ) found him responsible for wilful self-exposure to toxic welding fumes under NMSA 1978, Section 52-3^5 (1953). The WCJ relied on depositions, letters, and other evidence indicating that Worker’s doctors cautioned him that continued welding might exacerbate his preexisting lung condition. As such, the court denied Worker benefits for his lung condition because it found that he recklessly disregarded the risks involved in continued employment as a welder. On appeal, Worker argues that his actions are not legally sufficient to constitute wilful self-exposure and that the WCJ’s findings are unsupported on whole record review. We agree. Under the standard announced in Delgado, Worker’s decision to continue welding despite his doctors’ warnings does not constitute a wilful act. 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d 1148. We reverse the order of the WCJ below.

BACKGROUND

{2} Worker left high school in the eleventh grade to pursue a career as a plumber, pipe fitter, and welder. He attended trade school for that purpose, and at the time of trial, he had worked in those industries for more than thirty-two years. Throughout Worker’s career, he held positions as a pipe rigger, pipe fitter, welder, arc machine welder, plumber, and construction worker. However, as Worker testified, he has always primarily considered himself a welder.

{3} On October 7, 2002, Worker was employed as a welder by Johnson Controls Northern N.M., LLC; Johnson Control, Inc.; OHMS; Kellogg, Brown & Root, Inc.; Shaw Infrastructures, Inc.; Los Alamos Technical Associates, Inc.; and CCMSI (collectively Employers) when he suffered the lung injury that forms the basis for this appeal. Worker and his crew were directed to weld seismic braces in a poorly ventilated pump house at Los Alamos National Laboratory. The braces were pre-painted and treated with an epoxy finish, which emitted fumes when subjected to the heat of a welding torch. Worker had been diagnosed with a chronic lung condition from previous exposures to such fumes, but as a result of his exposure in October 2002 his condition worsened to the point that he could no longer tolerate welding. On August 20, 2003, Worker filed a workers’ compensation claim for his lung injury. That claim was stayed for a period of time and later consolidated with claims for separate injuries, which are outside the scope of this appeal. On February 27, 2009, the matter came before WCJ Gregory Griego for a trial on the merits. The court considered Worker’s medical records, the depositions of several treating physicians, other documentary exhibits, and the testimony of Worker himself.

{4} As his medical records indicate, in June 1998 Worker was serving as a welder on a job in Fort Collins, Colorado, when he suffered his first bout of fume exposure. On that occasion, he was taken to the emergency room and received treatment for breathing problems. In Worker’s medical file, the treating physician wrote, “I advised the patient that he needed to be very careful about exposure to the welding fumes and that he really needed to pay attention to respiratory protection and ventilation.” After Worker’s release, his job required him to continue welding in a low-ventilation environment for several months until he finally had “had enough,” resigned his position in Fort Collins, and returned to New Mexico.

{5} Worker again sought treatment upon returning to New Mexico, this time at Southwest Pulmonary Specialists, where Dr. Kenneth Kalassian (Dr. Kalassian) cared for him on several occasions. On September 24, 1998, Dr. Kalassian diagnosed Worker with “metal fume fever” and observed Worker’s “history of exposure to volatile fumes.” Dr. Kalassian wrote that “[t]he patient has been instructed to refrain from exposure to any volatile substances that may aggravate his underlying lung disease.” He further stated that “[t]o-ward this end, a letter will be generated to the patient’s employer stating that exposure to hazardous volatiles could severely compromise the patient’s health.” Dr. Kalassian treated Worker again on November 16,1998. In his notes from that date, he stated, “The patient has once again been highly cautioned to avoid volatile substances such as those he has been exposed to in the past in the work place. He has recently undertaken efforts to undergo job retraining.” One month later, Dr. Kalassian again “counseled [the patient] regarding the need to avoid hazardous exposures particularly indoor welding.”

{6} Dr. Matthew Montoya (Dr. Montoya) replaced Dr. Kalassian in February 1999 as Worker’s treating physician at Southwest Pulmonary Specialists. During the following month, on March 23, 1999, Dr. Montoya described his ongoing treatment of Worker’s “chronic fume exposure” condition. His notes from that date state that Dr. Montoya agreed with “Dr. Kalassian’s previous recommendations [that] the patient needs to get out of welding as the fumes will continue to cause exacerbations.” Dr. Montoya also stated that Worker “has noted that with continued welding and exposure he [experiences breathing problems,]” and that he agreed “with [Worker’s] plan to get some retraining for a different job.” In a May 19, 1999 letter, Dr. Montoya wrote that Worker should “be removed from exposure [to the] causative agent or other agents with similar sensitizing properties in order to avoid further attacks and chronic disease.” Then, in August 1999 Dr. Montoya described Worker’s condition as “reactive airway disease with chronic exacerbation from environmental occupational fume exposure” and observed that “[d]ue to the severity of [Worker’s] lung disease and the high probability that he will never be able to return to his chosen career field, we have recommended that he seek a second opinion with Dr. Rose in Denver, Colorado[.]” The evidence then reflects that Dr. Cecilia Rose (Dr. Rose) conducted a comprehensive evaluation of Worker’s “respiratory and systemic symptoms ... associated with welding in a confined space.” However, we are unable to locate any final diagnosis or recommendation in the record.

{7} While receiving the above-mentioned treatment, throughout 1998 and 1999, Worker took several non-welding jobs in an attempt to prevent exposure to welding fumes. Nevertheless, financial pressures caused him time and again to take welding jobs as well. Although such stints as a welder seem to roughly coincide with the onset of his lung irritations and symptoms during this period, we note that the record also indicates times after Worker’s diagnosis when he worked as a welder with no problems whatsoever.

{8} In the last relevant medical record entry prior to Worker’s accident, Dr. Montoya wrote, “Patient doing quite well as long as he stays away from fumes and cigarette smoke.” There are no pertinent medical entries between 2001 and October 2002, when Worker was injured. Several subsequent documents entered as evidence demonstrate Worker continued to receive warnings that welding might cause a worsening of his condition.

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Bluebook (online)
2011 NMCA 034, 149 N.M. 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearson-v-johnson-controls-northern-nm-llc-nmctapp-2011.