2019 New Mexico Statutes
Chapter 52 - Workers' Compensation
Article 3 - Occupational Disease Disablement
Section 52-3-45 - Employees [Employee's] willful misconduct, willful self-exposure; defined.
Notwithstanding anything herein contained no employee or dependent of any employee shall be entitled to receive compensation for disablement or death from an occupational disease when such disablement or death, wholly or in part, was caused by the willful misconduct, willful self-exposure or willful disobedience to such reasonable rules and regulations as may be adopted by the employer and which rules and regulations have been and are kept posted in conspicuous places in and about the premises of the employer, or otherwise brought to the attention of such employee. As used in this section the term "willful self-exposure" shall include:
A. failure or omission on the part of an employee or applicant for employment truthfully to state in writing to the best of his knowledge in answer to any inquiry made by the employer, the place, duration and nature of previous employment;
B. failure or omission on the part of an applicant for employment to truthfully state in writing to the best of his knowledge in answer to an inquiry made by the employer, whether or not he had previously been disabled, laid off or compensated in damages, or otherwise, because of any physical disability;
C. failure or omission on the part of an employee or applicant for employment truthfully to give in writing to the best of his knowledge in answer to any inquiry made by the employer, full information about the previous status of his health, previous medical and hospital attention and direct and continuous exposure to active pulmonary tuberculosis.
History: 1941 Comp., § 57-1132, enacted by Laws 1945, ch. 135, § 32; 1953 Comp., § 59-11-33.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Standard of willfulness applied to employees. — The standard of willfulness 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, 131 N.M. 272, 34 P.3d 1148; Pearson v. Johnson Controls, 2011-NMCA-034, 149 N.M. 740, 255 P.3d 318, cert. denied, 2011-NMCERT-003, 150 N.M. 620, 264 P.3d 521.
Employee's actions did not constitute willful self-exposure to injury. — Where worker, who was a welder for more than thirty-two years, had been diagnosed with a chronic lung condition from previous exposures to fumes caused by welding; although worker was warned by worker's doctors on at least seven different occasions that continued welding might exacerbate worker's preexisting lung condition, the doctors always released worker to return to welding; notwithstanding the doctors' warnings, worker continued to work as a welder; none of the doctors definitively advised worker to completely stop welding; during worker's career, worker alternated between welding and non-welding jobs when worker experienced a flare-up of worker's lung condition; even though worker sometimes worked as a welder without a problem, the flare-up of worker's lung condition was closely correlated with welding, worker's decision to continue welding despite the doctors' warnings did not constitute a willful act. Pearson v. Johnson Controls, 2011-NMCA-034, 149 N.M. 740, 255 P.3d 318, cert. denied, 2011-NMCERT-003, 150 N.M. 620, 264 P.3d 521.
