Benavides v. Eastern NM Med Center

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 SARA L. BENAVIDES, 3 Worker-Appellant, 4 v. NO. 32,450 5 EASTERN NEW MEXICO MEDICAL 6 CENTER and ZURICH AMERICAN 7 INSURANCE COMPANY, 8 Employer/Insurer-Appellees. 9 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION 10 Gregory D. Griego, Workers’ Compensation Judge 11 Gerald A. Hanrahan 12 Albuquerque, NM 13 for Appellant 14 Timothy Hale 15 Albuquerque, NM 16 for Appellees 17 MEMORANDUM OPINION 18 VANZI, Judge. 1 {1} Worker appeals from a Workers’ Compensation order providing her with 2 benefits but denying a ten percent safety device penalty. We proposed to affirm. 3 Worker has responded with a memorandum in opposition. 4 {2} In this appeal, Worker has raised seven issues that may be addressed in 5 consolidated form as follows. Pursuant to NMSA 1978, Section 52-1-10(B) (1989), 6 Worker sought a 10% increase in benefits due to Employer’s failure to provide a 7 safety device. Specifically, Worker based her claim on the failure to have a “wet 8 floor” sign posted at the place of her injury. Section 52-1-10(B) provides: 9 In case an injury to, or death of, a worker results from the failure of an 10 employer to provide safety devices required by law or, in any industry 11 in which safety devices are not prescribed by statute, if an injury to, or 12 death of, a worker results from the negligence of the employer in failing 13 to supply reasonable safety devices in general use for the use or 14 protection of the worker, then the compensation otherwise payable under 15 the Workers’ Compensation Act shall be increased ten percent. 16 {3} In a memorandum opinion, the Workers’ Compensation Judge (WCJ) noted that 17 Employer provided wet floor signs for use by housekeeping staff. [RP 1298] 18 However, the signs were not deployed as they should have been. [RP 1298] Under 19 these circumstances, the WCJ concluded that the 10% safety penalty should not be 20 imposed, pursuant to the analysis set forth in Jaramillo v. Anaconda Co., 95 N.M. 21 728, 625 P.2d 1245 (Ct. App. 1981). In Jaramillo, this Court determined that the 22 “failure to provide” language in Section 52-1-10(B) did not apply to a situation where 23 a safety device is provided by an employer but is not properly employed by a [2] 1 coworker. Id. at 729, 625 P.2d 1246 . This is precisely what happened here. 2 Accordingly, our calendar notice proposed to affirm. 3 {4} In her memorandum in opposition, Worker claims that she is not asking us to 4 overrule Jaramillo. [MIO 1] In support, Worker refers us to Martinez v. Zia Co., 100 5 N.M. 8 , 10, 664 P.2d 1021, 1023 (Ct. App. 1983), where the safety device was a 6 missing rearview mirror on a Bobcat. [MIO 3] Worker relies on the fact that the 7 employer in that case had provided other Bobcats that did not have missing mirrors, 8 and analogized this to the availability of wet floor signs in the present case. See id. 9 We are not persuaded. We believe that Martinez is distinguishable because there is 10 no indication in the present case that Employer provided defective warning signs. As 11 such, we conclude that Jaramillo is controlling in this case. Likewise, Worker’s 12 reliance on Dickerson v. Farmer’s Elec. Coop., 67 N.M. 23, 26 , 350 P.2d 1037 , 1039 13 (1960) is misplaced because, as in Martinez, the items used (safety gloves) were 14 themselves defective safety devices. [MIO 4] 15 {5} Finally, we are also not persuaded that Jaramillo was abolished by any changes 16 to NMSA 1978, Section 52-1-8(B) (1989), concerning defenses, that were made 17 subsequent to Jaramillo. There were no relevant changes made to this particular 18 subsection in the 1989 amendments. NMSA 1978, § 52-1-8(B) (1973). 19 {6} For the reasons set forth above, we affirm. 20 {7} IT IS SO ORDERED. [3] 1 __________________________________ 2 LINDA M. VANZI, Judge 3 WE CONCUR: 4 _________________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6 _________________________________ 7 J. MILES HANISEE, Judge