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Las Vegas Workers’ Compensation Attorney Andre Lagomarsino – Appeals Court Rules Death by Pigeon Constitutes Injury under Workers’ Compensation Act

According to a New Mexico Court of Appeals, not only does the Workers’ Compensation Act apply regardless of whether the employer or employee is responsible for the injury, the Workers’ Compensation Act apply regardless of whether the injury was caused by an inherent risk of the job.

Alfredo Castillo worked as a warehouse laborer at Caprock Pipe & Supply. Because the warehouse was open, pigeons frequently flew through and roosted in the warehouse, exposing Caprock’s workers to roosting pigeons and pigeon feces. Castillo contracted psittacosis, an infection caused by bacteria found in bird droppings, and died. His family then filed a wrongful death suit. Caprock filed a motion to dismiss the wrongful death suit, arguing that Castillo’s death arose out of and in the course of his employment, therefore the exclusivity provisions of the Workers’ Compensation Act applied, and thus Castillo’s family was limited to workers’ compensation benefits.

After reviewing the facts, the district court agreed with Caprock that workers’ compensation laws applied and thus barred Castillo’s family from pursuing a wrongful death suit. Caprock’s Motion to Dismiss was granted. The Castillo family appealed.

The appeals court sided with the district court. For the Worker’s Compensation Act to apply and bar a cause of action by an employee, three requirements must be met:

1. [A]t the time of the accident, the employer has complied with the provisions thereof regarding insurance;
2. [A]t the time of the accident, the employee is performing service arising out of and in the course of his employment; and 3. [T]he injury or death is proximately caused by an accident arising out of and in the course of his employment and is not intentionally self-inflicted.

While all parties agreed that the first two requirements were met, the dispute lay within the third requirement. Castillo’s family argued that the “accident” did not arise out of and in the court of Castillo’s employment.

According to the appeals court, the phrase, in the course of employment, “relates to the time, place, and circumstances under which the accident takes place.” Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 10, 144 N.M. 782, 192 P.3d 777. This means that “an injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.” Grimes v. Wal-Mart Stores Inc., 2007-NMCA-028, ¶ 7, 141 N.M. 249, 154 P.3d 64.

Furthermore, case law has established that “‘arising out of employment’ . . . require[s] a showing that the injury was caused by a peculiar or increased risk to which claimant, as distinguished from the general public, was subjected by his employment.” Berry v. J.C. Penney Co., 74 N.M. 484, 485-86, 394 P.2d 996, 997 (1964). Castillo’s injury was caused by his exposure to pigeons and pigeon feces within Defendant’s warehouse. Castillo had a peculiar or increased risk of being exposed to pigeons solely as a result of his employment in a warehouse occupied by pigeons. And it appears that this risk was particular to Castillo and his fellow laborers at this warehouse and not the general public because the allegations of roosting were limited to the warehouse.

The requirement that the injury occur in the course of his employment was met. His injury is nonetheless exclusively covered by the” workers’ compensation laws. Sonya Castillo, et al v. Caprock Pipe & Supply, Inc. 2012 N.M.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in any cases that may be referenced above. This commentary is for educational purposes. If you would like to be represented by an attorney in our Las Vegas office, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.