Schober v. Mountain Bell Telephone

600 P.2d 283, 93 N.M. 337

• Court: New Mexico Court of Appeals
• Decided: October 31, 1978
• Docket: 3585
• Status: Published

Opinions

OPINION

HENDLEY, Judge.

Plaintiff brought suit under the Workmen’s Compensation Act, § 59-10-1 et seq., N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1, 1974) as amended, claiming that his allergic reaction to cigarette smoke in the work environment provided by his employer was a compensable injury under the Act. Defendant’s motion for summary judgment was granted on the basis that plaintiff’s allergic reaction, which caused him to eventually collapse, was not an “accidental injury” as a matter of law as contemplated by the Act. We disagree.

Webb v. New Mexico Pub. Co., 47 N.M. 279, 141 P.2d 333 (1943) is dispositive of this issue. There the employer provided Webb, a printer-operator, with a soap which he used to wash his hands several times a day over a period of about six months. Solely because of his allergic reaction to the soap Webb developed large painful eruptions on the backs of his hands which completely incapacitated him in his work. The court found this injury to be accidental.

In reaching its conclusion the court refused to define “accident” in its “restricted and technical sense” but instead opted for a “wider and practical” definition necessary “to give workable effect to the proper and just administration of the Compensation Law.” The court found that there must be a time:

“. . . when it can be said with certainty that a compensable accidental injury has been inflicted; but the cause, and the coming into existence of the evidence characterizing it as a compensable one, need not be simultaneous events . . . ”

See also, Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342 (1941).

Thus, under Webb, supra, the happenings may be gradual and may involve several different accidents which culminate in an accidental injury. In the present case the claim is that the constant exposure to cigarette smoke in the work environment triggered the allergies which in turn caused plaintiff to collapse. We see no distinguishing features between the instant case and Webb, supra, insofar as accidental injury is discussed. The motion for summary judgment should have been denied.

Defendant urges us to analogize this case to the “silicosis” cases where workmen who developed this respiratory ailment over a prolonged period were denied workmen compensation benefits. See Aranbula v. Banner Min. Co., 49 N.M. 253, 161 P.2d 867 (1945); Simion v. Molybdenum Corporation, 49 N.M. 265, 161 P.2d 875 (1945). Silicosis, however, is an occupational disease now covered by the Occupational Disease Disablement Law (§ 59-11-1, et seq. N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 1, 1974) as amended; Vincent v. United Nuclear-Homestake Partners, 89 N.M. 704, 556 P.2d 1180 (Ct.App.1976). An allergic reaction to cigarette smoke is not an occupational disease. It is no different than the allergic reaction in Webb, supra. Aranbula, supra, and Simion, supra, are not on point.

This court has reviewed defendant’s other arguments that the injury did not arise out of or in the course of employment as required by § 59-10-6, supra, and that plaintiff has already been compensated. These are questions of fact which are for the trier of fact to decide and not for an appellate court to resolve. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

Reversed.

IT IS SO ORDERED.

LOPEZ, J., concurs. HERNANDEZ, J., dissents.