Theresa ORTIZ, for the estate of Robert BAROS, deceased, Worker-Appellant, v. OVERLAND EXPRESS, uninsured, and WCA Uninsured Employers' Fund, Employer/Insurer-Appellees, 146 N.M. 170

OPINION VIGIL, Judge. {1} Worker’s estate appeals from a compensation order awarding no compensation to the estate. The Workers’ Compensation Judge (WCJ) concluded that Worker’s use of methamphetamine and amphetamine was the sole cause of his death and benefits are therefore barred by NMSA 1978, § 52-1-12 (1989) of the Worker’s Compensation Act (WCA). We hold that, as it relates to amphetamine and methamphetamine, this statutory defense was abolished by the Legislature in 1972.

We also reject Employer’s argument that benefits are barred because Worker was acting outside the course of his employment when he died and because Worker willfully suffered his death. We therefore reverse. BACKGROUND {2} Worker had a regular full-time day job with a construction company in addition to his part-time job with Overland Express (Employer), where he was employed as a delivery service driver/courier. On October 29, 2004, Worker went to work at his first job for eight hours until 5:00 p.m.

Thereafter, Worker came home, had dinner, spent time with his family, and slept for an undetermined number of hours before going to work for Employer at either 10:00 p.m. or 12:00 midnight. Worker then drove Employer’s delivery van all night until the accident, which occurred at 7:00 a.m. the next morning. {3} While driving northbound in the left lane on Interstate 25, Worker appeared to be attempting to pass another vehicle when his van slowly crossed from the left lane into the right lane, struck the rear of the vehicle traveling in the right lane, left the highway, and rolled over at least three times.

The evidence was that Worker did not apply the brakes to the van before it hit the other vehicle and drifted off the road. Worker was pronounced dead at the scene. {4} The police officer who investigated the accident concluded that based on the time of day, the witness’s description of the van’s movement, and the lack of braking, Worker was “unaware of the pending collision” and was either asleep, unable to avoid making contact with witness’s vehicle, or was otherwise preoccupied at the time of the accident.

The Office of the Medical Investigator concluded that the cause of death was multiple blunt force injuries. The toxicology report revealed that Worker’s femoral blood contained 0.08 mg/1 of amphetamine, 0.78 mg/1 of methamphetamine, and 0.03 mg/1 of morphine. {5} Employer did not have workers’ compensation insurance at the time of Worker’s death. Therefore, as the mother of Worker’s two minor children, Plaintiff filed a claim for benefits with the Uninsured Employers’ Fund (UEF), followed by a Workers’ Compensation Complaint with the Workers’ Compensation Administration against Employer and UEF.

Employer and UEF (which we collectively hereinafter refer to as Employer) asserted in relevant part that benefits should be denied or reduced because the proximate cause of Worker’s death was due to Worker’s use of narcotic drugs, legal or illegal and was willfully occasioned by him.

Following trial, the WCJ filed a compensation order stating that Worker’s accident “was occasioned solely by Worker’s use of methamphetamine and amphetamine,” those drugs are “narcotic drug[s],” and “the use of [those narcotic] drug[s] was the exclusive proximate cause of the accident.” The WCJ concluded that Plaintiff is not entitled to benefits because “the sole cause of Worker’s accident resulting in death was illegal drug use, pursuant to

Section 52-1-12.” Plaintiff appeals. ANALYSIS {6} Plaintiff argues that substantial evidence does not support the WCJ finding that drug use was the sole cause of Worker’s accident. Plaintiff argues that because fatigue also contributed to the accident, NMSA 1978,

Section 52-1-12.1 (2001) of the WCA is applicable, and it provides for a ten percent reduction of the compensation award rather than a complete bar. Employer counters that substantial evidence supports the WCJ finding that Worker’s injury was occasioned solely by Worker’s methamphetamine and amphetamine use, and Plaintiff is therefore barred from receiving benefits pursuant to

Section 52-1-12. In the alternative, Employer argues: (1) that Plaintiff is not entitled to benefits under NMSA 1978,

Section 52-1-28 (1987) because Worker was “acting outside the course and scope of his employment” at the time of his death; and (2) that benefits are barred by NMSA 1978,

Section 52-1-11 (1989) because Worker willfully suffered his death. A. Applicability of

Section 52-1-12 {7} In the course of determining whether substantial evidence supports a finding that Plaintiffs claim is barred by

Section 52-1-12, it became apparent that there was an issue as to whether

Section 52-1-12 applies to methamphetamine and amphetamine use. Accordingly, we asked the parties to submit simultaneous supplemental briefs addressing whether

Section 52-1-12 applies to methamphetamine or amphetamine use and whether we can raise this issue sua sponte. {8} In our

interpretation of the WCA, we engage in de novo review. See Howell v. Marto Elec., 2006-NMCA-154, ¶16, 140 N.M. 737, 148 P.3d 823 (“The

interpretation of the Workers’ Compensation Act and associated regulations is a question of law that we review de novo.”). After analyzing the plain language of the statute and its history, we are compelled to conclude that

Section 52-1-12 is not applicable in this case. {9}

Section 52-1-12 is titled, “Compensation prohibited when worker under influence of certain drugs.” It was originally adopted in 1971 and provided: No compensation is payable from any employer under the provisions of the Workmen’s Compensation Act if the injury to the person claiming compensation was occasioned solely by the person being under the influence of a depressant, stimulant or hallucinogenic drug as defined in the New Mexico Drug and Cosmetic Act or under the influence of a narcotic drug as defined in the Uniform Narcotic Drug Act. 1971 N.M. Laws, ch. 55, § 1 (emphasis added).

Section 52-1-12 was then amended in 1989 by 1989 N.M. Laws, ch. 263,

Section 9 to state: No compensation is payable from any employer under the provisions of the Workers’ Compensation Act [this article] if the injury to the person claiming compensation was occasioned solely by the person being under the influence of a depressant, stimulant or hallucinogenic drug as defined in the New Mexico Drug, Device and Cosmetic Act or under the influence of a narcotic drug as defined in the Controlled Substances Act. (Emphasis added.).

This is the version of the statute that is currently in effect. {10} A comparison of the 1971 and 1989 versions of the statute shows that in 1989, minor stylistic changes were made near the beginning of the section, and that “New Mexico Drug, Device and Cosmetic Act” (DDCA) was substituted for “New Mexico Drug and Cosmetic Act” and “Controlled Substances Act” was substituted for “Uniform Narcotic Drug Act.” {11} The plain language of

Section 52-1-12 requires us to refer to two other statutes to determine whether methamphetamine and amphetamine fall under its provisions: the DDCA, NMSA 1978, §§ 26-1-1 to -26 (1967, as amended through 2008) and the Controlled Substances Act, NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 2008). {12} We first look to whether methamphetamine or amphetamine is described in the DDCA as a “depressant, stimulant or hallucinogenic drug.” The DDCA was originally enacted in 1967, as the “New Mexico Drug and Cosmetic Act.” 1967 N.M. Laws, ch. 23, § 1.

The “New Mexico Drug and Cosmetic Act” had a definition of the phrase “depressant, stimulant or hallucinogenic drug,” and that definition included amphetamine. The definition, codified at NMSA 1953,

Section 54-6-27(F)(2) (1967, as amended through 1971) (repealed 1972), included any drug which contains any quantity of amphetamine or any of its optical isomers; any salt of amphetamine or any salt of an optical isomer of amphetamine; or any substance which the federal act has found to be, and by regulation, designated as habit-forming because of its stimulant effect on the central nervous system}.] However, this definition was repealed and permanently removed from the statute in 1972. 1972 N.M. Laws, ch. 84, § 43. In 1987, the name of the statute was changed to the DDCA. 1987 N.M. Laws, ch. 270, § 2. The DDCA is now codified at Sections 26-1-1 to -26 and it has no

definitions for the words or phrase “depressant, stimulant or hallucinogenic drug.” See id. {13} We now look to whether the definition of a “narcotic drug” in the Controlled Substances Act includes methamphetamine or amphetamine which would bring

Section 52-1-12 into play. The Controlled Substances Act defines a “narcotic drug” but that definition does not include methamphetamine or amphetamine. See § 30-31-2(0). Furthermore, the legislative history of the Controlled Substances Act reveals that neither methamphetamine nor amphetamine has ever been included in its definition of “narcotic drug.” NMSA 1953, § 54-7-2 (1935, as amended through 1971) (repealed 1972). {14} When the Legislature originally enacted

Section 52-1-12 in 1971, it clearly intended to include amphetamine in its prohibition because

Section 52-1-12 referred to the New Mexico Drug and Cosmetic Act for a definition of its term “depressant, stimulant, or hallucinogenic drug,” and the New Mexico Drug and Cosmetic Act defined that term. What the Legislature intended after the 1972 amendment permanently removed this definition from the New Mexico Drug and Cosmetic Act is not so clear because

Section 52-1-12 continued to refer to the New Mexico Drug and Cosmetic Act to define the phrase “depressant, stimulant, and hallucinogenic drug.” Adding to this confusion is the fact that in 1989,

Section 52-1-12 was amended to specifically refer to the DDCA to define the phrase “depressant, stimulant or hallucinogenic drug” when the DDCA did not contain a definition of those words or that phrase. Finally, we note that

Section 52-1-12.1 was enacted in 2001, long after the definition was permanently removed from the New Mexico Drug and Cosmetic Act in 1972, which then became the DDCA in 1987. In pertinent part,

Section 52-1-12.1 provides that the compensation payable to a worker under the WCA shall be reduced ten percent in cases in which the injury to or death of a worker is not “occasioned solely by drug influence as described in

Section 52-1-12,” but by “being under the influence of a depressant, stimulant or hallucinogenic drug as defined in the DDCA or under the influence of a narcotic drug as defined in the Controlled Substances Act.” We presume that when the Legislature enacts a statute it is aware of existing statutes. See State v. Maestas, 2007-NMSC-001, ¶ 21, 140 N.M. 836, 149 P.3d 933. Therefore, we cannot presume that after 1972, the Legislature intended to include methamphetamine and amphetamine in the definition of “depressant, stimulant, and hallucinogenic drug” in

Section 52-1-12 and

Section 52-1-12.1. {15} Reading methamphetamine and amphetamine into these statutes requires us to engage in impermissibly broad construction. In analogous cases we have refused to extend the scope of statutes through such a broad construction. See State v. Powels, 2003-NMCA-090, ¶¶ 9-11, 134 N.M. 118, 73 P.3d 256 (concluding that it is for the Legislature and not the judiciary to determine prohibited actions and define crimes through statutes, in a case where the State argued that public policy supported a broad

interpretation of a criminal statute that would have expanded the statute’s application beyond its plain meaning); State v. Leiding, 112 N.M. 143, 145-46, 812 P.2d 797, 799-800 (Ct.App.1991) (holding that “in the absence of more precise or clearer statutory language,” this Court would not broadly construe a criminal statute to apply to conduct that was not specifically prohibited and that “legislative therapy, not judicial surgery” was required to make the conduct fall under the statute).

Workers’ Compensation cases require careful construction. “The Worker’s [sic] Compensation Act reflects a deliberative balance between the interests of employers and employees. Thus, in the field of workers’ compensation, the courts are especially reluctant to perform ‘judicial surgery on the Act for fear that such an

interpretation could upset the Act’s intended balance.” Kahrs v. Sanchez, 1998-NMCA-037, ¶ 17, 125 N.M. 1, 956 P.2d 132 (citations omitted). We have considered the arguments made by Employer to somehow construe the statutes to include methamphetamine and amphetamine use in the provisions of Sections 52-1-12 and 52-1-12.1, but we conclude we cannot do so without ourselves acting as the Legislature. {16} The remaining question is whether we can raise this issue sua sponte. The parties agree that “jurisdictional” issues may be raised sua sponte on appeal after briefing has been completed. Rule 12-216(

B) NMRA sets forth exceptions to the requirement that issues must be presented to the trial court before they can be raised on appeal. The Rule states: “This rule shall not preclude the appellate court from considering jurisdictional questions or, in its discretion, questions involving: (1) general public interest; or (2) fundamental error or fundamental rights of a party.” Plaintiff argues that Pineda v. Grande Drilling Corp., 111 N.M. 536, 539, 807 P.2d 234, 237 (Ct.App. 1991) gives us authority to consider the issue for the first time on appeal as jurisdictional pursuant to Rule 12-216(B). We agree.

In Pineda we noted that “there is no easy test to determine whether a question is jurisdictional or involves general public interest, fundamental error, or fundamental rights of a party.” Id. at 539, 807 P.2d at 237. In that case the question presented was whether a rule of the Workers’ Compensation Division (WCD) allowing attorney fees to be awarded was applicable because the rule came into effect while the case was pending before the WCD. Id. at 538-39, 807 P.2d at 236-37. We held that the new rule could not be applied to that case. Id. at 540, 807 P.2d at 238.

Further, since the error in awarding attorney fees pursuant to the new rule went “to the heart of the WCD’s authority,” id., we considered the error as “a jurisdictional defect that can be raised for the first time on appeal.” Id. We conclude that the issue before us in this case is “jurisdictional” in the same sense. The WCJ had no authority to apply a non-existent defense to Plaintiffs claim and thereby reject the claim. Further, no additional facts needed to be developed at trial beyond those that are already before us to decide whether Employer’s defense exists under our statutes.

We therefore conclude that under Pineda, the issue before us can be raised for the first time on appeal as a jurisdictional issue. {17} We hold that neither

Section 52-1-12 nor

Section 52-1-12.1 constitutes a defense in this ease because neither methamphetamine nor amphetamine is defined as a “depressant, stimulant, or hallucinogenic drug” in the DDCA or as a “narcotic drug” in the Controlled Substances Act. We leave it to the Legislature to modify

Section 52-1-12 and

Section 52-1-12.1 to include methamphetamine and amphetamine in their provisions if that is its intent. Because we hold that neither

Section 52-1-12 nor

Section 52-1-12.1 applies, these defenses do not apply to the present case, and we do not reach the issue of whether there was sufficient evidence to support the WCJ’s determination that

Section 52-1-12 barred Plaintiff from recovering benefits. {18} We appreciate that the result here may appear anomalous. We also appreciate that the Legislature likely simply made a mistake of omission during the amendment process for the WCA, the DDCA and the Controlled Substances Act. However, the resulting language is specific, unambiguous, and clear. We see no reasonable room for

interpretation. To create the effect or result which Employer asks would require us to literally add language to the WCA and the DDCA. We cannot do so. B.

Section 52-1-28: Course of Employment {19} Employer argues that, pursuant to

Section 52-1-28, Plaintiff is barred from receiving benefits because Worker was “acting outside the course and scope of his employment” at the time of his death.

Section 52-1-28 states in relevant part that “[c]laims for workers’ compensation shall be allowed only ... when the worker has sustained an accidental injury arising out of and in the course of his employment.” Employer argues that Worker’s violation of Employer’s drug policy, which prohibited the use of illegal drugs while on the job, removed the accident from the protection of the Act. This argument also requires us to construe the applicable statutes, and our standard of review is de novo.

See Howell, 2006-NMCA-154, ¶ 16,140 N.M. 737,148 P.3d 823. {20} The cases cited by Employer to support its position, Lukesh v. Ortega, 95 N.M. 444, 623 P.2d 564 (1980), and Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579 (1954), are distinguishable from the present case. In those cases, the workers were barred from receiving benefits because they violated specific instructions that limited the scope or sphere of their authorized work, thus taking their actions outside the scope of their authorized work.

See Lukesh, 95 N.M. at 445, 623 P.2d at 565 (holding that a worker with a preexisting back injury, who had been specifically instructed not to lift a troweling machine because of this injury, and whose job responsibilities did not include any heavy lifting, could not recover workers’ compensation benefits after he reinjured his back by lifting the troweling machine); Walker, 58 N.M. at 185, 268 P.2d at 580 (holding that a service station worker who violated specific instructions not to disturb a tear gas gun in a vehicle could not recover benefits after he was blinded when the worker shot himself in the face with the tear gas gun).

The workers in those two cases were injured because they engaged in actions that were outside the scope of their authorized work. See Walker, 58 N.M. at 185, 268 P.2d at 580 (stating that the worker “must be held to stand the risk of the injury received by him which proximately resulted from

an act of his own which had no reasonable relation to the employment”). In the present case, Worker was injured while engaging in his authorized work, driving a delivery van for Employer. {21} Worker’s drug use in this case did not transform the performance of his authorized work into

an act with “no reasonable relation” to his employment. See id. We hold that

Section 52-1-28 does not bar Plaintiff from receiving compensation benefits. C.

Section 52-1-11: Willfully Suffered Injury {22} Employer also claims that Worker willfully suffered his death, thus barring Plaintiff from receiving benefits pursuant to

Section 52-1-11. This statute provides in relevant part, “[n]o compensation shall become due or payable from any employer ... in event such injury was ... willfully suffered by him[.]” Employer argues that Worker willfully suffered his death because he took methamphetamine and amphetamine with knowledge of the dangers associated with drug use and operating a motor vehicle. {23} Once again, since this argument requires us to engage in statutory

interpretation, our review is de novo. See Howell, 2006-NMCA-154, ¶ 16, 140 N.M. 737, 148 P.3d 823. In interpreting statutes, “we strive to read related statutes in harmony so as to give effect to all provisions.” N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. Additionally, when two statutes deal with the same subject matter, one general and one specific, the specific statute will control. Stinbrink v. Farmers Ins. Co. of Ariz., 111 N.M. 179, 182, 803 P.2d 664, 667 (1990). {24}

Section 52-1-12 and

Section 52-1-12.1, as the more specific statutes, represent the Act’s approach to circumstances in which a worker is injured or killed on-the-job while under the influence of drugs.

Section 52-1-12.1 results in a ten percent reduction in the compensation award, while

Section 52-1-11 provides employers with a complete defense. If employers are permitted to apply

Section 52-1-11 to all drug use, an insurmountable conflict with

Section 52-1-12.1 will result. It is contrary to logic to presume that the Legislature intended to allow employers to avoid the obligation under

Section 52-1-12.1 to pay ninety percent of a compensation award when drug use is a contributing cause of injury by allowing them to argue that a worker’s drug use resulted in a willfully suffered injury. Because “our task is to construe statutes in harmony whenever possible,” State v. Smith, 2004-NMSC-032, ¶ 13, 136 N.M. 372, 98 P.3d 1022, we are not persuaded that

Section 52-1-11 should be applied to drug use. CONCLUSION {25} For the above reasons, we reverse the WCJ’s compensation order and remand for further proceedings. {26} IT IS SO ORDERED. I CONCUR: MICHAEL D. BUSTAMANTE, Judge. JAMES J. WECHSLER, Judge (dissenting). . We encounter a similar problem with the intoxication provision of

Section 52-1-11, which provides employers with a complete defense when a worker's injury is "occasioned by” intoxication. Treating methamphetamine and amphetamine use as a form of intoxication, however, we encounter another conflict between

Section 52-1-11 and

Section 52-1-12.1. Case law has interpreted the phrase "occasioned by” in

Section 52-1-11 as a requirement that the employer prove that intoxication was the "proximate cause” of the accident. See Salazar v. City of Santa Fe, 102 N.M. 172, 178, 692 P.2d 1321, 1327 (Ct.App.1983). The uniform jury instruction on causation, UJI 13-305 NMRA, states that

an act is a "proximate cause” of an injury if it “contributes to bringing about the injury.” Furthermore, a proximate cause "need not be the only explanation for the injury, nor the reason that is nearest in time or place," but will be sufficient "if it occurs in combination with some other cause to produce the result.” Id. This can be interpreted to mean that the requirement in

Section 52-1-11 that the injury be "occasioned by” intoxication will be met if an employer is able to show that intoxication was a contributing cause to the injury. While

Section 52-1-11 provides a complete defense,

Section 52-1-12.1 provides employers with a partial defense (ten percent reduction of the award) when intoxication is a "contributing cause” to a worker’s injury or death. Under this analysis these two statutes are irreconcilable in their results. We again leave it to the Legislature to remedy this potential conflict.