February 09, 2011 – Marc Pearson v. Johnson Controls, Northern N.M. LLC, Johnson Control, Inc. and OHMS (TPA), No. 29,622

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 9, 2011
NO. 29,622
MARC PEARSON,
Worker-Appellant,
v.
JOHNSON CONTROLS, NORTHERN
N.M., LLC, JOHNSON CONTROL, INC.
and OHMS (TPA),
Employer/Insurer-Appellee,
and
MARC PEARSON,
Worker-Appellant,
v.
KELLOGG BROWN and ROOT, INC., SHAW
INFRASTRUCTURES, INC., LOS ALAMOS
TECHNICAL ASSOCIATES, INC. (KSL), and
CANNON CORCHRAN MANAGEMENT
SERVICES, INC. (TPA),
Employer/Insurer-Appellee.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Gregory D. Griego, Workers’ Compensation Judge
Donald D. Vigil, P.C.
Donald D. Vigil
Albuquerque, NM
for Appellant
David L. Skinner, P.C.
David L. Skinner
Albuquerque, NM
for Appellee

OPINION
KENNEDY, Judge.
{1} 	In this case, we hold that the standard of wilfulness required to deny worker’s
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 52-3-45
(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 that argues 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. We reverse the order of the WCJ
below.

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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.

3
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

4
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]oward 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]

5
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

6
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. Although we do not consider those here because they
came after Worker’s October 2002 accident, we note that Worker was not definitively
ordered to stop welding by his doctors until February 2003.
{9} 	The WCJ also considered Worker’s own testimony. 	Worker began by
describing his professional history and training as outlined above. 	He testified at
some length regarding how he alternated between welding and non-welding jobs when
he experienced a flare-up of his lung condition throughout his career. Worker testified
that his lung condition would sometimes give him trouble when he was welding, but
he made it clear that it did not always do so. As to warnings from his doctors about
the hazards of welding and toxic fumes, he stated that he did receive such warnings.
However, Worker qualified this admission by describing how such warnings were
general and non-specific. 	Moreover, despite such warnings, his doctors always

7
released him to return to welding. For instance, Worker testified that although both
Drs. Kalassian and Montoya recommended he might want to try other types of work
that did not involve welding or toxic fumes, neither doctor actually advised him to
stop welding. As such, Worker stated it was his belief that his doctors were simply
advising him on less hazardous career possibilities. We find no evidence in the record
to suggest Worker actually knew he was being ordered to stop welding altogether.
{10} 	Worker also described the events leading up to his October 7, 2002, Los
Alamos fume exposure. In doing so, he discussed how he and the members of his
crew were ordered to weld seismic braces in a poorly ventilated pump house area.
When the crew discovered the braces had been pre-treated with paint and epoxy, they
objected to welding them on the basis that such treatments would produce hazardous
smoke. 	Nevertheless, Worker testified, Employers ordered the crew to weld the
braces anyway, although Employers did take measures to reduce the fumes by
installing ventilators and fans. 	Worker also testified that Employers knew of his
chronic lung condition at the time they hired him. Employers dispute this assertion.
{11} 	The WCJ issued the compensation order at issue in this appeal on May 29,
2009. It found that Worker had continued to seek employment as a welder in reckless
disregard of several warnings by his physicians. Thus, the WCJ concluded, Worker’s

8
actions constituted wilful self-exposure under Section 52-3-45 and prohibited him
from receiving compensation for his injury. As the court observed, “Worker persisted
in his exposure to welding fumes in disregard of medical advice that continued fume
exposure would result in injury.”
{12} 	On appeal, Worker argues this result was error. 	He argues the facts do not
support a finding of wilful self-exposure under Section 52-3-45, and furthermore,
even if his actions can be classified as wilful, he possessed a reasonable justification
that makes compensation proper. Employers contend whole record review requires
this Court to affirm.
DISCUSSION
A. 	Standard of Review
{13} 	This Court reviews workers’ compensation orders under a whole record
standard. 	Moya v. City of Albuquerque, 2008-NMSC-004, ¶ 6, 143 N.M. 258, 175
P.3d 926. In doing so, we consider “all the evidence bearing on the WCJ’s decision
in order to determine if there is substantial evidence to support the result.” Flores v.
McKay Oil Corp., 2008-NMCA-123, ¶ 7, 144 N.M. 782, 192 P.3d 777, cert. quashed,
2009-NMCERT-003, 146 N.M. 604, 213 P.3d 508. 	We will not substitute our
judgment for that of the workers’ compensation judge below, despite the fact that “the

9
evidence may support inconsistent findings.” 	Herman v. Miners’ Hosp., 111 N.M.
550, 552, 807 P.2d 734, 736 (1991). So long as the WCJ’s findings are supported by
substantial evidence on the record as a whole, we accord them deference. 	Id.
Nevertheless, “[w]e review the WCJ’s application of the law to the facts de novo.”
Leonard v. Payday Prof’l, 2007-NMCA-128, ¶ 10, 142 N.M. 605, 168 P.3d 177.
B. 	Application of Section 52-3-45
{14} 	As 	this 	Court 	has 	observed 	many 	times, 	the 	New 	Mexico 	Workers’
Compensation Act (the Act) strikes a balance between the interests of workers and
employers. 	See NMSA 1978, §§ 52-1-1 to -70 (1987, as amended through 2007);
Delgado, 2001-NMSC-034, ¶ 12. 	Under the Act, “[w]hen a worker suffers an
accidental injury and a number of other preconditions are satisfied,” he receives
compensation “quickly, without having to endure the rigors of litigation or prove” the
employer’s culpability. Delgado, 2001-NMSC-034, ¶ 12. In return for granting such
swift compensation, the employer “is assured that a worker accidentally injured, even
by the employer’s own negligence, will be limited to compensation under the Act and
may not pursue the unpredictable damages available outside its boundaries.” Id. In
order to maintain the proper balance, however, it is vitally important that workers’
injuries be accidental, see § 52-1-9(C), and our courts have defined an accidental

1Both parties agree with this Court that Delgado’s definition of “wilful”
controls in this case.
10
injury as an “unlooked-for mishap or . . . untoward event that is not expected or
designed.” 	Delgado, 2001-NMSC-034, ¶¶ 13-14 (internal quotation marks and
citation omitted). 	Thus, any injury caused by wilful conduct is by definition non-
accidental and non-compensable. 	Id. ¶¶ 20, 26. 	If it were not so, the Act would
unfairly require employers to pay when a worker intentionally injured himself and
would deny workers a remedy in tort when their employers intentionally injured them.
To this end, the Act disallows compensation to any worker who wilfully self-
exposes himself to the hazard responsible for his injury. Section 52-3-45; see § 52-1-
11. To our knowledge, the courts have not yet been called to interpret Section 52-3-
45 and specifically, what conduct might qualify as “wilful self-exposure.” In Delgado,
however, our Supreme Court defined in detail the term “wilful,” as that term is used
in the Act. 2001-NMSC-034, ¶ 1 (defining wilful in the context of Section 52-1-11
but applying it more broadly “[f]or purposes of the Act”). 	We therefore hold that
Delgado provides the proper definition in the instant matter.1 Under Delgado, a party
acts wilfully when
(1) the worker or employer engages in an intentional act or omission,
without just cause or excuse, that is reasonably expected to result in the

11
injury suffered by the worker; (2) the worker or employer expects the
injury to occur, or has utterly disregarded the consequences of the
intentional act or omission; and (3) the intentional act or omission
proximately causes the worker’s injury.
2001-NMSC-034, ¶ 1. Parties must shoulder a high burden to prove their opponent’s
wilfulness under Delgado. 	Chairez v. James Hamilton Constr. Co., 2009-NMCA-
093, ¶ 30, 146 N.M. 794, 215 P.3d 732, cert. denied, 2009-NMCERT-007, 147 N.M.
362, 223 P.3d 359. Not only must a party proffer evidence meeting each of Delgado’s
three elements, but they must also demonstrate their opponent acted unconscionably
and with “a comparable degree of egregiousness as the employer in Delgado.”
Morales v. Reynolds, 2004-NMCA-098, ¶¶ 10, 14, 136 N.M. 280, 97 P.3d 612; see
Salazar v. Torres, 2007-NMSC-019, ¶ 14, 141 N.M. 559, 158 P.3d 449; Chairez,
2009-NMCA-093, ¶ 30.
{15} 	The conduct at issue in Delgado was indeed egregious. There, the employer
doomed a worker to almost certain death by ordering him to conduct emergency
repairs on an iron cauldron threatening to overflow with superheated molten rock.
2001-NMSC-034, ¶¶ 3-5. The worker protested, arguing he “was neither qualified nor
able” to proceed alone as directed. Id. ¶ 5. But the employer insisted, whereupon the
worker did as he was told and was quickly consumed by flames. Id. He died a few
weeks later from his burns, which covered his entire body. 	Id. 	As this Court has

12
observed, the employer’s acts in Delgado stemmed from “egregious employer
conduct: a combination of deadly conditions, profit-motivated disregard for easily
implemented safety measures, complete lack of worker training or preparation, and
outright denial of assistance to a worker in a terrifying situation.” 	Morales, 2004-
NMCA-098, ¶ 10.
{16} 	On several occasions since Delgado, our courts have analyzed whether specific
instances of employer conduct met the required level of egregiousness demanded by
that standard. For instance, in Morales, the worker was injured when he was ordered
to work on a pump containing a hazardous chemical. While repairing the pump, some
of the chemical was released and caused the hood of his protective gear to
malfunction, injuring him. 	Id. ¶ 2. 	The court considered evidence that employer
knew repairing the pump in this way posed at least some danger of a protective gear
malfunction. Evidence was also presented that employer knew of other equipment
that might have been safer but chose to forego it. Id. ¶ 22. In that case this Court held
that “the events that occurred . . . do not approach the type of incidents that Delgado
sought to prevent. The acts or omissions that [the worker] argues did not cause the
injurious event in the way that the acts of the employer in Delgado caused Delgado
to be set on fire.” Morales, 2004-NMCA-098, ¶ 24.

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{17} 	This Court reached a similar result in Chairez. In that case, the employer made
an after-market modification to a rock-crushing machine, which exposed a dangerous
portion of its engine and resulted in worker’s injury. 	Chairez, 2009-NMCA-093,
¶¶ 8-10. Yet we held that “the gravity of the harm and the certainty of injury . . . does
not approach the level required by Delgado.” 	Chairez, 2009-NMCA-093, ¶ 33.
Likewise, in Dominguez v. Perovich Properties, Inc., we held that an employer’s
failure to provide safety equipment and safety standards to prevent a worker’s injury
did not meet the requirements of Delgado, even though the worker’s injury was
arguably foreseeable. Dominguez, 2005-NMCA-050, ¶ 21, 137 N.M. 401, 111 P.3d
721; see Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1213 (10th Cir. 2006)
(holding that a worker suffered an accidental injury when her coworkers “arrested”
her as part of a prank to commemorate her graduation from probationary to regular
employment status).
{18} 	As these opinions and many others demonstrate, the usual scenario in this type
of case involves a worker’s use of Delgado to expose the employer to liability in tort;
and because Delgado offers such a narrow exception, that technique rarely succeeds.
See, e.g., Chairez, 2009-NMCA-093, ¶ 30. It is unusual, then, for us to see a case like
the one at bar in which the employer deploys Delgado for the purpose of moving a

14
worker’s conduct outside the Act. Indeed, we are not aware of cases in which that has
happened. Be that as it may, our Supreme Court has made Delgado applicable to both
workers and employers. 2001-NMSC-034, ¶ 26. In the instant case, our precedents
dictate that Worker’s conduct, although inarguably unwise and almost certainly
negligent, is not the type of egregious behavior leading to almost certain injury that
Delgado seeks to exclude from workers’ compensation.
{19} 	By our count, prior to Worker’s injury on October 7, 2002, his doctors made
statements about his need to refrain from exposing himself to welding fumes on at
least seven separate occasions. From his medical records and employment history, it
is likewise clear that although he sometimes welded without a problem, his work as
a welder correlated closely with the intermittent onset and/or intensification of his
symptoms. Under these circumstances, we conclude that a reasonable person, armed
with the knowledge available to Worker in October 2002, would find Worker’s injury
to flow naturally from his intentional act to continue welding. 	See id. ¶ 27. 	It is
similarly clear that Worker’s decision to continue welding proximately caused his
injury. See also id. ¶ 29; Tallman v. ABF (Ark. Best Freight), 108 N.M. 124, 132-33,
767 P.2d 363, 371-72 (Ct. App. 1988) (requiring a causal connection between a
worker’s wilful conduct and his injury to preclude recovery); see also UJI 13-305

15
NMRA (describing proximate cause as an act that “contributes to bringing about the
injury” and is “reasonably connected as a significant link to the injury”).
{20} 	Nevertheless, the evidence below was insufficient to establish Worker’s
subjective appreciation of the risk under Delgado. Under that standard, Employer was
required to prove that Worker “decided to engage in the act or omission without ever
considering its consequences . . . . If, on the other hand, [he] . . . did consider the
consequences of the act or omission, this prong will be satisfied only when [he]
expected the injury to occur.” 	Delgado, 2001-NMSC-034, ¶ 28; see Tallman, 108
N.M. at 133, 767 P.2d at 372 (requiring “knowledge of the peril and the ability to
foresee the injury for which [his conduct] is to blame”). In the trial below, Employer
presented no such evidence. In fact, the weight of the evidence on the whole record
appears to be quite to the contrary. It demonstrates that Worker thought his doctors’
warnings were inconsistent and that none ever advised him to stop welding outright
prior to October 2002.
{21} 	Most importantly, Worker’s actions, in light of the gravity of the harm
involved, do not rise to the egregious, unconscionable level of certainty required by
Delgado. 	Chairez, 2009-NMCA-093, ¶ 33; see Morales, 2004-NMCA-098, ¶ 10.
Here, Worker possessed knowledge of his special sensitivity to fumes and received

16
generalized warnings regarding the dangers of continued employment as a welder.
There is no evidence he was ever definitively advised to end his career as a welder
prior to October 2002, and it is similarly clear that he had sometimes worked as a
welder without the occurrence of a fume exposure or a flare-up of his lung condition.
Worker’s choice in continuing to weld therefore does not present the type of situation
in which he wilfully faced almost certain injury. His actions, though they may fall
below a standard of ordinary care, are at most negligent. Thus, Worker’s decision
fails to satisfy Delgado’s narrow exception to the general rule that accidental injuries
remain within the Act. Delgado was written with a view to the overarching notion of
balance. 	2001-NMSC-034, ¶ 12, 24 (“[E]mployers . . . must be held to the same
standard of conduct, and suffer equivalent consequences . . . as workers.”).
Accordingly, this Court would be remiss if it did not apply the same high standard to
workers’ conduct as it has done many times to the negligence of employers.
CONCLUSION
{22} 	The WCJ misapplied the law in this case; and we reverse and remand for further
proceedings consistent with this opinion. Because we reverse, we have no need to
consider any other possible grounds for reversal, including Worker’s argument that
he possessed just cause or excuse to continue welding or that Employers were aware

17
of his lung problems at the time of hire.
{23} 	IT IS SO ORDERED.
___________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
LINDA M. VANZI, Judge