New Mexico Court of Appeals Rules Death by Pigeon Covered Under Workers’ Comp

The exclusive remedy for a worker injured in the course of his employment is the Workers’ Compensation Act (Act) regardless of whether the injury was caused by an inherent risk of the job, according to a recent decision by the New Mexico Court of Appeals.

Alfredo Castillo worked as a warehouse laborer at an open air warehouse operated by his employer, Caprock Pipe & Supply, when he contracted psittacosis, an infection caused by bacteria found in bird droppings, and died. During his employment in the open air warehouse he was exposed to roosting pigeons and pigeon feces. His surviving wife and children filed the wrongful death suit; disputing Castillo’s death arose out of and in the course of his employment because his injury did not relate to this work.

In response, Caprock filed a motion to dismiss citing that the case was barred by the exclusivity provisions of the Act and the Disablement Law. The district court agreed with Caprock and the case was dismissed. The Appeals Court partially sided with the district court, concluding Castillo’s death does not fall within the exclusivity provisions; however, his injury and death are covered under the Act.

The appeals court found that compensation under the Disablement Law only applies when the disablement or death is caused by an occupational disease arising out of and in the course of employment.

According to the appeals court decision, Castillo “contracted the disease while performing the duties of his employment, during work hours, while at Defendant’s warehouse. Therefore, the requirement that the injury occur in the course of his employment has been met.”

The court concluded “that although the pigeons were an unusual circumstance of Castillo’s employment and that pigeons and psittacosis may not be an inherent risk of working in a warehouse, his injury is nonetheless exclusively covered by the Act.”

It was because of his employment that Castillo contracted the disease and died, the court stated.

The court found that the district court did not err in dismissing the suit, indicating plaintiffs’ exclusive remedy is workers’ compensation.

“…We conclude that, even though the causation was unusual, the injury was sufficiently connected to his employment for recovery to be exclusively covered by the Act,” stated the appeals court opinion.

The case is Sonya Castillo, et al v. Caprock Pipe & Supply, Inc. 2012 N.M.