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New Mexico: Compensation Awarded to “Non-Participating” Victim of Horseplay

February 28, 2014 (1 min read)

A New Mexico appellate court recently affirmed an award of benefits to a worker injured during a workplace horseplay incident in which she was grabbed around her shoulders and lifted off the ground.  When an MRI indicated she suffered from “significant” spinal stenosis, including cervical compression, the worker underwent a cervical spine fusion and discectomy.  Quoting Larson’s Workers’ Compensation Law, the appellate court found in relevant part that substantial evidence supported the workers’ compensation judge’s determination that the worker was a non-participant in the horseplay and, therefore, her injuries were compensable whether or not the perpetrator had deviated from his own employment in “joking around” with her.  Observing that under Woods v. Asplundh Tree Expert Co., 114 N.M. 162, 836 P.2d 81 (1992), the law drew a distinction between a participating and a “non-participating” victim, that in the case of the former, the fact finder was to determined if there had been a substantial deviation from the employment, but that in the latter situation, no such issue needed determination, the appellate court here found that the law judge had not erred.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See Esckelson v. Miners’ Colfax Med. Ctr., 2014 N.M. App. LEXIS 14 (Feb. 18, 2014) [2014 N.M. App. LEXIS 14 (Feb. 18, 2014)]

See generally Larson’s Workers’ Compensation Law, § 23.02 [23.02]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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