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Wagner v. AGW Consultants5/24/2005
ermine whether there is evidence that a reasonable mind could accept as adequate to support the conclusions reached by the fact finder." Levario, 120 N.M. at 737, 906 P.2d at 269.
{86} AGW challenges the WCJ's finding that the first accident arose out of and was in the course of Worker 's employment. An injury is in the course of employment if it is incurred when the employee is at a place where he may reasonably be and is engaged in doing something incidental to fulfilling the duties of his employment. Edens v. N.M. Health & Social Servs. Dep't, 89 N.M. 60, 63, 547 P.2d 65, 68 (1976). Similarly, an injury arises out of employment if it is a risk "to which the worker is subjected in the employment." Losinski v. Corcoran, Barkoff & Stagnone, P.A., 97 N.M. 79, 80, 636 P.2d 898, 899 (Ct. App. 1981).
{87} In support of its argument that Worker was not in the course and scope of his employment, AGW points to Turner's testimony that he had given Worker specific directions concerning how and where to fill the tube with water and that Worker did not follow those specific directions . We note, however, that the WCJ was not required to believe Turner's testimony on this issue. See Powers v. Miller, 1999-NMCA-080, 16, 127 N.M. 496, 984 P.2d 177 (explaining that the trier of fact is not required to believe any particular witness). More to the point, even if Worker did not follow Turner's instructions, that does not, by itself, establish that he was no longer in the course and scope of his employment at the time of the injury. Instead, the question is whether the deviation was so great that Worker was no longer doing anything to further his employer's business. Frederick v. Younger Van Lines, 74 N.M. 320, 325-27, 393 P.2d 438, 441-43 (1964); see also 1 Arthur Larson The Law of Workmen's Compensation ยง 19.50 (2003). It is undisputed that Worker was injured during work hours at a place that Worker was expected to be while attempting to set up the equipment necessary to take the well temperature measurements. Thus, substantial evidence supports the WCJ's finding that Worker's injury arose out of and was in the course of employment.
The Second Fall Was Not an Independent Intervening Cause
{88} AGW contends that Worker 's fall at home while on crutches was an independent intervening cause and, therefore, AGW was not liable for any of the consequences of the second fall. AGW recognizes that this Court has previously held that "an injury resulting from the concurrence of a pre-existing injury and the normal movements of everyday life is a `direct and natural result' of the original injury." Aragon v. State Corr. Dep't, 113 N.M. 176, 181, 824 P.2d 316, 321 (Ct. App. 1991) (internal citation omitted). In essence, AGW contends that the second fall was not the result of the normal movements of everyday life. Common sense tells us that moving around one's home is a normal activity of daily life. Indeed, banging one's foot against a stationary object is woefully common. Consequently, substantial evidence supports the WCJ's finding that Worker's fall was compensable. Moreover, we doubt whether Aragon's definition of independent intervening cause would apply at any time before the worker has reached MMI for the accidental injury.
Dr. Gehlert Was an Authorized Health Care Provider
{89} AGW also challenges the finding that Dr. Gehlert was an authorized health care provider. AGW acknowledges that Turner was aware that Worker was dissatisfied with his treatment at Lovelace and that Turner suggested to Worker that he consult Dr. White. Dr. White informed Worker that he did not treat ankle injuries and referred Worker to Dr. Legant. Turner drove Worker to Worker's app
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