280_C038

CO-WORKER’S PUNCH RESULTED IN ACCIDENTAL AND COMPENSABLE INJURIES

Workers Compensation	Intentional Tort
Accidental Injury	Unlooked-for Mishap

Leonard Griego was an ironworker for Patriot Erectors, Inc. (Patriot) at a construction site. On December 4, 2004, Darryl Honeycutt, a supervisor, told Griego to “get his tools and get off the project.” Griego went to Don Price (their mutual construction superintendent) to complain about Honeycutt’s actions. Griego was speaking to Price when Honeycutt approached Griego and began to argue with him about whether he violated safety rules while working on the project. Griego disagreed with Honeycutt’s version of the events and Honeycutt “sucker-punched” Griego in the jaw. Price and another employee got between the two and stopped any further altercation.

Griego suffered injuries to his jaw and temporomandibular joint (TMJ) and sought workers compensation benefits. Patriot filed a motion for summary judgment. It argued that Honeycutt’s actions were intentional, not accidental, and that Griego could not recover under the Workers Compensation Act. Griego responded by stating that, from his perspective, being punched by Honeycut was unexpected and, as a result, was accidental. The Workers Compensation Judge (WCJ) concluded that Griego did not suffer an accident as the Act defines and granted summary judgment in favor of Patriot. Griego appealed.

The one issue on appeal was whether a co-worker’s intentional tort against another worker was an accident for the purpose of workers compensation benefits. The appellate court determined that the Act provided that “each employer in New Mexico shall become liable to and pay to any such worker injured by accident that arises out of and in the course of his employment …compensation in the manner and amount at the times required in the…Act.” A worker may obtain compensation under the act only when he or she is “injured by accident” because the Act does not compensate non-accidental injuries.

The Act does not define “accident.” However, courts have long recognized that “an ‘accidental injury’ is an ‘unlooked-for mishap or some untoward event that is not expected or designed.’” Previous case law stated that whether an injury can be considered accidental is “determined from the injured worker’s perspective.” As a result, the pertinent question was not whether Griego believed that Honeycutt acted intentionally but rather whether Griego expected or designed Honeycutt’s actions. This meant that the fact that Griego believed that Honeycut did not accidently sucker-punch him was not material to the analysis.

Patriot argued that intentional torts are outside the scope of the Act and that Griego’s injuries could not be considered accidental. The appellate court determined that only a worker’s or employer’s intentional or willful conduct brings an incident outside the Act’s scope. In this case, neither party alleged that Patriot engaged in willful or intentional conduct that resulted in the incident being considered intentional from Patriot’s perspective, nor that Honeycutt was an alter ego of Patriot. As a result, Griego’s injuries were accidental from his perspective as well as from Patriot’s and fell within the scope of the Act.

The appellate court reversed the WCJ’s order that granted summary judgment in favor of Patriot and remanded the case for further proceedings consistent with this opinion.

Note: The court noted a reference in the brief to the fact that even if Griego’s injuries were not accidental, he could recover both workers compensation benefits and tort damages. This action did not include a demand for tort damages. Because it did not, and because the conclusion was that Griego’s injuries were caused by an accident and clearly within the scope of the Act, the court did address the issue of tort damages.

Court of Appeals of New Mexico. Leonard Griego, Worker-Appellant, v. Patriot Erectors, Inc. and Commerce and Industries Insurance Company, Employer/Insurer-Appellees. No. 26,378. Feb 27, 2007. Certiorari Denied, No. 30,295 April 30, 2007. 141 N.M. 844, 161 P.3d 889