## Facts

- Herbert A. Schober worked for Mountain Bell Telephone as a facility planner after a career in electronics and switching equipment.
- Mountain Bell reassigned Schober from a relatively smoke-free office to an open office area where coworkers’ smoking exposed him to substantial tobacco smoke.
- Schober developed severe respiratory and allergic symptoms diagnosed as an allergy to tobacco smoke; physicians advised that there was no cure and that avoidance of smoke was necessary.
- Schober attempted to mitigate exposure by installing home air filtration, requesting an enclosed work office to permit filtration (denied), and accepting a demotion to reduce exposure, but remained highly sensitive to even low smoke levels.
- Schober collapsed at work in November 1976 and again on January 24, 1977; the second event required hospitalization and months of recovery.
- Mountain Bell discharged Schober during his recovery period, citing “excessive accidents.”
- Schober filed a workers’ compensation claim alleging disability caused or aggravated by continual workplace tobacco-smoke exposure.
- The district court found the injury arose out of and in the course of employment, awarded 30% temporary partial disability benefits, and limited recoverable expert-witness fees to $750 despite higher reasonable charges.

## Issues

1. Whether substantial evidence supported findings that Schober suffered a disabling tobacco-smoke allergy and that workplace exposure was a major contributing factor.
2. Whether an injury resulting from an employee’s unusual susceptibility to tobacco smoke nevertheless “arose out of” employment under the New Mexico Workmen’s Compensation Act.
3. Whether the disability should be classified as temporary partial disability or permanent partial disability.
4. Whether the 30% disability determination was supported by substantial evidence.
5. Whether recoverable expert-witness fees could exceed the statutory $750 limit when higher fees were found reasonable and necessary.

## Decision

- The court affirmed the trial court’s findings that Schober had a disabling tobacco-smoke allergy and that his work exposure materially contributed to his condition.
- The court held the injury arose out of employment despite Schober’s idiopathic sensitivity because the workplace conditions significantly aggravated the condition.
- The court modified the judgment to classify Schober’s condition as permanent partial disability rather than temporary partial disability.
- The court upheld the 30% disability rating as supported by substantial evidence.
- The court affirmed the $750 cap on recoverable expert-witness fees as controlling under the statute and remanded for benefit adjustment consistent with permanent partial disability.

## Legal Principles

- A work-related injury may be compensable even when the employee has an idiosyncratic susceptibility, if employment conditions materially contribute to, aggravate, or accelerate the condition.
- “Arising out of employment” may be satisfied where the workplace exposes the worker to conditions that significantly contribute to the injury, even if similar conditions can exist in the general community.
- Permanent partial disability may be found where a lasting medical condition restricts access to employment using the worker’s skills, even though some work capacity remains.
- Statutory limits on recoverable expert-witness fees in workers’ compensation proceedings control even when actual fees are higher and found reasonable and necessary.

## Conclusion

The court held that continual workplace exposure to tobacco smoke that significantly aggravated an employee’s medically verified allergy was a compensable injury arising out of employment, modified the award to permanent partial disability at 30%, and enforced the statutory cap limiting recoverable expert-witness fees to $750.


Schober v. Mountain Bell Tel., 630 P.2d 1231 (N.M. Ct. App. 1980)